Lawyers are increasingly taking their marketing online, but not every state has clear professional responsibility rules governing online marketing and other communications. Find out what one ethics expert says about whether law blogs are ethical.
Mark C. Palmer, of the Illinois Supreme Court Commission on Professionalism recently wrote a guest article for Attorney @ Work called “The Right Way to Start a Law Blog?” In giving advice to a law firm looking to move into the 21st century with online marketing, he also provided guidance on the ethical aspects of blogging.
It is important to remember that each state’s laws and rules of professional conduct are different. Palmer spoke from the perspective of the American Bar Association’s model rules, but you should look at your local rules any for limitations or guidance they may provide.
Can I Blog About My Cases?
When you win a big civil settlement or get a not guilty verdict in a jury trial, you want to brag about it. Blogging about big wins for your firm can also be a great way to demonstrate why potential clients should choose you over your competition. But does it break attorney client confidentiality?
ABA Model Rule 1.6 protects a client’s privacy. It says “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent.” But the rule is not absolute. Palmer says:
“Just because a matter is currently pending, however, does not mean you must not discuss the case publicly in any manner whatsoever — zip, zero, zilch.”
He directs lawyers looking to blog about their success in the courtroom to ABA Model Rule 3.6 on trial publicity. To paint with the broadest stroke, the Model Rule allows blogs to include whatever information is available to the general public.
Should I Talk to My Clients Before I Write About Them?
Just because something is legal or permissible doesn’t always make it right. That applies when it comes to blogging about your cases as well. The rules of professional responsibility may allow you to write about your pending cases, but unless you have let your clients know that you may do so, they could believe you have violated their privacy when you do so.
One easy way to do this it to build it in to your retainer agreement and initial client consultation. To document your discussion of how client information could be used on your blog your fee agreement could say something like this:
This firm uses online marketing efforts including blogs, newsletters, and social media posts. There is a possibility that publicly accessible information about your case will appear in these efforts. However, we will not disclose your private information or personal identifying information without your prior consent. If you do not want us to use even public information about your case online, please inform the firm in writing.
There are also different levels of publicity. I had the honor of handling the first same-sex divorce in Oakland County. This fact is publicly accessible. And so I blogged about it, with no ill effects. Then a local journalist read that blog post and wanted to write an article. That kind of press can be a huge marketing boost to a lawyer, but it also exposes a client’s personal history to thousands of readers. Before I gave an interview or approved the article, I went back to the client. When she said she would rather the divorce remained private, I declined the article out of respect for the client’s confidentiality.
Isn’t Blogging Advertising?
One of the reasons lawyers are sometimes hesitant to blog is they are worried about crossing ethical lines about advertising or solicitation. ABA Model Rules 7.1 – 7.4 lay out sample rules on lawyer advertising. No state can outlaw lawyers advertising outright. But depending on how you write your blog posts, they could be subject to your state’s advertising regulations. For example, the ABA Formal Ethics Opinion 10-457 says:
“… [T]he lawyer takes part in a bilateral discussion about the possibility of forming a client-lawyer relationship and has the opportunity to limit or encourage the flow of information. For example, the lawyer may ask for additional details or may caution against providing any personal or sensitive information until a conflicts check can be completed.”
Depending on your state’s advertising regulations, you may need to add disclaimers to your website, blog page, or even particular posts. Palmer provides some typical disclaimers used by lawyers:
- “Past results are not a guarantee of similar results for others.”
- Language conveying that the blog is not intended to convey legal advice.
- Language conveying that the blog does not create an attorney-client relationship.
- “You should contact a licensed attorney for assistance with your legal needs.”
Don’t let fact that your blog could possibly fall within the reach of state advertising rules, or that you should discuss this use with your clients dissuade you from using this powerful marketing tool. If you take your time to understand local ethics rules, your law blog can absolutely be ethical.