It’s easy to forget that lawyering is a business that requires a significant amount of advertising. Lawyers offer a service, and as many unemployed attorneys know, the profession includes lots of people doing essentially the same work. You have to find your customers to make it rain.
For more and more attorneys, blogging has become one part of an overall marketing strategy. Is law blogging always advertising? The Virginia State Bar seems to think so. Last month, it disciplined a small-firm attorney for not providing adequate advertising disclaimers on his blog.
Is the Bar, as Judge Richard Posner likes to say, being an ostrich? Is it sticking its head in the sand and ignoring the current technological paradigm — or is there a legitimate ethics concern here? Let’s see….
On October 18, a disciplinary committee found that attorney Horace Hunter violated ethics rules by writing a regular blog about cases in which he was involved, without adding any disclaimer categorizing the writing as advertising.
Hunter blogs on his firm’s website. He claims the content is not advertising, and that he has a First Amendment right to post it without disclaimers.
The Washington Post explained the Bar’s position a few days before the decision came out:
One purpose of the Web site is to market the firm and attract business, so any discussion of Hunter’s cases is considered advertising and must include a disclaimer “that puts the case results in a context that is not misleading,” the charge said.
To me, this shows a serious misunderstanding of how the Internet works. Obviously any business operates a website so that people can find it easily — and hopefully take advantage of its services. Does this mean everything on your site is an advertisement? Not necessarily.
A quality website — whether it’s for an oil company, a law firm, or a rock band — is most effective when it provides useful information for potential customers. It’s not about hard selling. It’s about being genuinely helpful and endearing yourself to the marketplace. Above the Law columnist Brian Tannebaum wrote a good column yesterday about Twitter’s ability to do this.
The Virginia Bar seems to think all lawyers who blog are writing content akin to the BP ads after the Gulf oil spill. I guess I’m not that cynical. Besides, a normal person should be able to tell the difference between simple shilling and at least an attempt to be informative.
More from the Washington Post:
The bar’s position in Hunter’s case conflicts with the general movement in legal advertising that encourages the use of social media without placing undue burdens on lawyers, said Brad Shear, a Bethesda attorney who specializes in social media law.
The American Bar Association’s Commission on Ethics recently said no new restrictions were necessary to regulate lawyers’ use of technology and client development, and that prohibiting Internet and other electronic advertising would “impede the flow of information about legal services to many sectors of the public.”
My other immediate question about Virginia’s apparent stance is: How does it apply to attorney-bloggers at larger publications? Like, uh, Above the Law. The Law.com network also publishes frequent articles from firm attorneys. Do they need disclaimers, too?
The blogging debate brings to mind another tech-ethics controversy from earlier this year, which has been resolved for the time being: Can attorneys advertise on deal sites like Groupon without violating rules that say attorneys cannot share fees with non-lawyers?
In the Washington Post piece, attorney Brad Shear brought up the ol’ slippery slope argument against disallowing what are essentially marketing necessities at this point. If blogging isn’t necessary in and of itself, web-based marketing is a part of life, and the profession needs to embrace it, just like every other industry on the planet:
“If the Virginia Bar believes that blogs that discuss news and commentary should have stringent disclaimers that precede the content because they are deemed to be advertisements, then the Virginia Bar may have to require that every blog post, blog comments on other blogs and other user-generated content by an attorney to contain a strict disclaimer,” said Shear, who has no ties to the Hunter case. “It becomes a slippery slope.”
I can’t believe he actually said “slippery slope” — but the point rings true. Just because an attorney is writing about the law does not mean he’s writing an ad. He might be, but let’s not throw the baby out with the bath water, bury our heads in the sand, wear sunglasses at night, whatever.
Virginia State Bar’s crackdown on lawyer’s blog raises questions [Washington Post]
Christopher Danzig is a writer in Oakland, California. He covers legal technology and the West Coast for Above the Law. Follow Chris on Twitter @chrisdanzig or email him at [email protected]. You can read more of his work at chrisdanzig.com.