Blogging: Advertisement or Journalism?

Advertising has been a vexing problem for the legal profession for years now.  Before legal advertising was deemed legal with the 1977 Supreme Court decision in Bates v. Arizona, the fear was that advertising would erode notions of professionalism. And since advertising become legal for attorneys, we have had to suffer though the late night ‘Larry Parker got me $2.1 million’ commercials.

This tension between professionalism and advertising has followed into the online realms as well.  Chat rooms, websites and Internet Referral Services have all been fertile ground for attorney advertising – and unethical conduct.

Now blogs are at issue … once again.  The questions becomes, how big is the threat?

Attorney Horace Hunter, who maintains the Richmond Criminal Defense News blog has been charged with misconduct by the Virginia State Bar (PDF here). The Washington Post‘s Capital Business blog recently stirred the pot when it cautioned that the action against Hunter could have a chilling effect on blogging in the legal industry.[1]

However, the Washington Post‘s Capitol Business blog could be way off base here. The main issue in the case is whether a blog should be treated as advertising or as news & commentary.

Hunter asserts that the blog is not an advertisement, but rather consists of news and commentary. Since his blog falls into a ‘news and commentary’ category, no disclaimer is required and the blog is protected by the First Amendment.  The Virginia State Bar contends that Hunter’s blog is advertising and as such, under Virginia Ethics Rule 7.2 Hunter must ethically post a disclaimer on his website.  Since Hunter didn’t have the disclaimer in his blog posts noting his firm’s wins, the Bar claims this is unethical.

However, this Rule 7.2 Disclaimer Rule is only to apply, “when listing previous wins in advertising.”  The disclaimer must state that prior results don’t guarantee future success. The issue will be will be whether Hunter’s blog posts are written in a truly journalistic fashion, or are they simply disguised advertising taking the form of blog posts.[2]

The Viriginia State Bar claims may ultimately hold merit. Carolyn Elefant seems to think that Hunter’s blog is a thinly veiled newsfeed of his firm’s triumphs and successes. You can see for yourself by visiting the blog here.

We will have to see what the Virginia Bar decides, the hearing is set for October 18th.  Even if the Bar succeeds, attorneys will merely have to place some small text reading “Attorney Advertising” on the footer of the main blog page – not even at the bottom of each post. This is not a major issue.  Further, as Kevin O’keefe of RLHB points out there is no record of disciplinary action against Virginia attorneys regarding blogging dating back to 1999.

Brief summary of Advertising rules & issues:

  • Lawyers cannot state anything false or misleading
  • Lawyers cannot state they are a specialists, unless so certified by their respective State Bar
  • Lawyers cannot use testimonials in some states with the implication that past performance will dictate future results
  • It’s smart to include a disclaimer on your website that you practice in a certain geographic region to avoid unauthorized practice of law claims
  • Use common sense – if you can’t do it on the T.V. or the radio, you can’t state it in your website, blog, Twitter, or Facebook (remember Rakofsky!)

Further Resources:

[1] Washington Posts’s Catherine Ho (@WapoCat on Twitter) warns that Virginia lawyers who blog about their cases may suffer  the consequences from their state bar.  Ms. Ho also state that the Hunter case could set precedent fo other states bar’s limiting legal blogs.

[2] One thing that I have found in years of tracking these ethics and technologies issues is that each case must be decided on a case-by-case basis. Because each case involves specific electronic conduct by the attorney or firm at issue, it’s tough to make blanket statements on the merits of one case. There are numerous firms – especially P.I. firms – whose blogs are thinly veiled advertisements or direct solicitations. And that may be the case here.