This material is reproduced from a CEB Blog™ guest entry, Blog, But Blog Ethically, (August 19, http://blog.ceb.com/2013/08/19/blog-but-blog-ethically/) copyright 2013 by the Regents of the University of California. Reproduced with permission of Continuing Education of the Bar – California. (For information about CEB publications, telephone toll free 1-800-CEB-3444 or visit our Web site, CEB.com).
Lawyers are often gun-shy when it comes to blogging, in part because of the ethical limits on advertising and solicitation by lawyers. But if you keep ethical considerations in mind, blogging can be a fun, cost-effective way to promote your practice. Here are some thoughts on how to navigate the potential ethical minefields of legal blogging:
- Blog by the Rules. The California Rules of Professional Conduct limit advertising and solicitation by lawyers. Although there are many professional rules to keep in mind while writing a blog, e.g., acting competently (Rule 3-110), avoiding liability to a third-party (Rule 3-210), the main professional conduct rule to review carefully and always consider when blogging is Rule 1-400 on advertising and solicitation.
- Add a disclaimer. Add a clear disclaimer that the blog is not legal advice and that you are not creating an attorney-client relationship by posting a blog. Under the standards adopted by the Board of Governors of the California State Bar under Rule 1-400, you should also include the name of the member responsible for the post in case the blog could be considered an advertisement for employment.
- Identify a suitable topic. Generally speaking, blogs are “communication[s]” under Rule 1-400 and need to be drafted with that in mind. Among other things, this means you need to make sure that posts aren’t misleading to the public. The topic of the blog post can be either substantive or practical; it’s ideal to blog about changes to the law or noteworthy cases. Also, a blog is a good place to highlight changes to your law practice, such as the addition of a new lawyer. But never post any “guarantees, warranties, or predictions” as to your legal representation, these are presumed to violate Rule 1-400. Also, when blogging on matters involving your clients, e.g., on the outcome of a particular case, make sure to preserve confidences, such as “names have been changed …” (circa Dragnet).
- Title it appropriately. Titles are very important, because readers often determine whether to read your blog based on its title. Your title gives you a chance to be creative—something lawyers don’t often get a chance to be. But keep the Rules of Professional Conduct in mind as you let your creative juices flow. For example, be careful when titling your blog or blog post not to create a false impression about your law firm or governmental entity affiliation, and don’t use a materially different name to blog than yours or your firm’s name. All of these examples are presumed to violate Rule 1-400.
- Regularly update and maintain records. Post on your blog regularly, e.g.,weekly, and update or take down posts that are no longer correct. You can notify clients and others (subject to the Rules of Professional Conduct) when you update your blog by using an e-mail marketing service and/or other social media channels. Just make sure that you keep a copy of the published blog posts for two years, as Rule 1-400 requires that you retain for two years copies of any “communication(s)” made by written or electronic media. Also hang on to copies of research to support the statements you made in the posts.
-Guest post by April E. Frisby of Frisby Law. April is a corporate and securities transactional lawyer and an adjunct law professor at Whittier Law School.