Are legal blogs considered advertising? What can you say online without crossing your state bar ethics rules? Are lawyers ever free of the regulatory requirements of their profession?
Even though lawyer advertising has been legal since the 1970s, many attorneys are still wary of anything that could be interpreted as an advertisement. They don’t know how to insulate themselves from the ethical challenges of deceptive marketing, so they decide to steer clear entirely. And that includes blogging.
But by doing so, they become increasingly isolated from potential customers. Sophisticated modern customers will not even take a referral on face value. Instead, they investigate names they receive through traditional advertising or “a friend of a friend” by looking up the attorneys online.
This has caused an increasing number of attorneys to blog and provide informational content on the web to stand out from their competition and demonstrate their expertise. And that has created an ethical question: are law blogs advertising?
California Determines Whether Law Blogs Are Advertising
The State Bar of California Standing Committee on Professional Responsibility and Conduct recently took on this question. It’s Formal Opinion No. 2016-196 provides useful guidance to lawyers writing online. The Committee outlined five hypothetical blogs, explaining why each may or may not be considered a “communication” by advertising legal services to potential customers:
Attorney A: The Braggart
Attorney A was a criminal defense attorney whose stand-alone blog boasted about each case he won. It laid out facts and arguments of his cases and bragged about his winning streak. Even though the blog did not explicitly invite readers to contact or hire Attorney A, it did make representations about his ability as a lawyer and link to his website. Because of this, the Committee said that the attorney’s blog was a “communication” and would likely cause readers to falsely conclude that he would produce the same results for them.
Attorney B: The Business Blog
Attorney B’s firm hosted a blog as a page on the firm’s website where it offered contacts for professional services. Even though the information on the blog was informational in nature, this information was wrapped in marketing and branding consistent with the firm’s website. The end of each post contained a traditional “call to action” inviting readers to contact the firm for more information. The Committee said that this blog was also a “communication”, but said that the normal disclaimers included in an attorney website would also cover representations made in the blog as well.
Attorney C: The Informational Outlet
Attorney C’s stand-alone blog consisted of short articles related to his work as a family lawyer. The purpose of the blog was to enhance his reputation. The blog contained a link to C’s professional website, but did not describe his practice or qualifications. However, some posts included an invitation to contact C with questions. The Committee said that the blog as a whole was not necessarily a “communication”, but those posts containing the call to action may have crossed the line into advertising subject to regulation.
Attorney D: The Op-Ed
Attorney D maintained a stand-alone blog where he would post editorials on topics related to the judiciary and the practice of law. The editorial blog contains a biography at the bottom of the page that describes him as a lawyer and links to his legal website. However, he does not invite readers to contact him. The Committee said that even though the content was informed by the writer’s profession, it was not a “communication” or an “advertisement” for regulatory purposes.
Attorney E: The Personal Blog
Attorney E does not write about law at all. Instead, it is a commentary on jazz music. The blog is linked to E’s professional website, and his professional site does link to the blog. However, there is no connection between the content and his professional work. The Committee said:
“An attorney may freely write a blog on any of the countless legal and non-legal subjects, and may identify himself or herself as an attorney thereon, without concern of being subject to [ethical rules] unless the blog specifically invites the reader to retain the attorney services or otherwise indicates the attorney’s availability for professional employment.”
Blogs As Advertising
Many lawyers’ professional blogs fall into the “communications” categories outlined by the Committee. But that doesn’t mean attorneys should avoid the practice. While states vary in their regulation of attorney advertising, it is considered protected First Amendment speech. That means that there is a way, no matter where you are, to do it well. In California, this includes avoiding false or deceptive content, or representations that would cause potential customers to assume they will receive similar results. Advertisements must also clearly indicate that they are solicitations.
These regulations can sometimes intimidate new law bloggers. However, in most states, they can be satisfied with standing disclaimers and careful wording. While not every state has issued the same clear guidelines, many also have ethics opinions to guide lawyers in doing it write.
Don’t let fear of “advertising” keep you from demonstrating your expertise. Do the research to find out what your state’s regulations for advertising are, so you can engage with potential clients with confidence.
Lisa Schmidt is a writer for Legal Linguist in Ferndale, Michigan. She writes blogs and web content for lawyers and small businesses. If your law firm needs a well-written and ethics-conscious professional blog, contact the Legal Linguist to schedule a meeting.