Blogging Ethics
Thinking about starting a legal blog? Maybe you already have one. If you’re an Arizona lawyer, you’ve got some potential ethical minefields to navigate when blogging.
A big one: lawyer advertising. If your blog is considered advertising, you need to pay attention to the advertising rules.
Think about your existing or planned blog in two steps. First: Is it advertising? Second: If yes, what advertising requirements do you need to follow?
Is your blog an advertisement?
Here’s a personal example. I maintain two blogs: one at halfsheetpan.wordpress.com and one on my website, ethicsatlaw.com.
On halfsheetpan.wordpress.com, I write about cooking and baking. My “about” blurb says this:
I’m a home chef who likes to write about and document food I make. I take cooking and baking classes and follow sites such as The New York Times cooking and Food52.com. My guilty pleasure: always having dessert in the refrigerator. And I have a lot of half-sheet pans.
I don’t identify myself as a lawyer, list my work contact information or link to my lawyer life.
On ethicsatlaw.com, I write about ethics and law-practice issues. My “about” section of my website identifies me as a lawyer, gives my work contact information, and says, in part:
I'm a legal ethics consultant and lawyer based in Phoenix, Arizona. I teach at local, state and national ethics-related continuing-legal-education seminars and write frequently on ethics topics for publication. Why should you pay attention to what I have to say? Because I know legal ethics.
Which of my blogs is lawyer advertising? Pretty clear, isn’t it? I write about zucchini and sourdough on halfsheetpan.wordpress.com, and don’t promote myself as a lawyer. On ethicsatlaw.com, I clearly advertise my expertise and availability as an ethics lawyer.
As in most of life, the extremes are easy to identify. The middle is the muddle. And, of course, it depends on the content of your blog.
ER 7.2 allows lawyers to “advertise services through written, recorded or electronic communication, including public media,” as long as the lawyer complies with ER 7.1, which prohibits false or misleading “communications about the lawyer or the lawyer’s service,” and ER 7.3, which restricts our ability to “solicit” clients.
Comment 1 to ER 7.2 provides a helpful touchstone, saying, in part: “Advertising involves an active quest for clients.”
If your blog is an “active quest for clients,” then it is advertising. But what’s an active quest for clients? Merely mentioning that you are a lawyer?
Think about my blogs again. My non-legal halfsheetpan.wordpress.com blog is not an “active quest for clients” – I don’t even mention I’m a lawyer -- so I’m not advertising there.
My law blog – this blog, at ethicsatlaw.com – is indeed advertising because it’s part of my professional website, which is itself advertising. [Ariz. Ethics Op. 97-04; ER 7.1]
But what if I had a stand-alone blog on legal topics that was not part of my professional website? The State Bar of California’s Standing Committee on Professional Responsibility and Conduct recently opined that such a blog would not be a communication subject to California’s legal-advertising rules “unless the blog directly or implicitly expresses the attorney’s availability for professional employment.” [Formal Op. No. 2016-196]
However and wherever you blog, consider whether you invite potential clients to contact you, whether the blog promotes your services, and whether you are expressing your availability. If so, it might be considered advertising.
If your blog is an advertisement, pay attention to the advertising rules
The basic one: You can’t make a false or misleading communication, nor knowingly permit one to be made on your behalf.
What is false or misleading? “A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.” [ER 7.1]
Comments 2 and 3 to ER 7.1 elaborate:
A truthful statement is misleading if it omits a fact necessary to make the lawyer's communication considered as a whole not materially misleading. A truthful statement is also misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer's services for which there is no reasonable factual foundation.
Promising or guaranteeing a particular outcome or result is misleading. A communication that truthfully reports a lawyer's achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client's case. Similarly, an unsubstantiated comparison of the lawyer's services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated….
Whether a communication is false or misleading is based on a reasonable person’s perception. [ER 7.1, comment 5]
Don't make false or misleading statements, however, even on your non-advertising or non-legal blog. On halfsheetpan.wordpress.com, I couldn’t falsely claim to be a professional chef. That would violate ER 8.4(c), which prohibits a lawyer from engaging in conduct “involving dishonesty, fraud, deceit or misrepresentation.” ER 8.4 is among the ethical rules that apply regardless whether you are representing a client or are acting outside the practice of law.
Disclaimers: Do you need some kind of disclaimer on your blog? Two different types of disclaimers come into play here. One deals with whether the information you include about particular outcomes or results is misleading. Comment 3 to ER 7.1 suggests “[t]he inclusion of a clear and conspicuous disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead a prospective client.” This only works, however, if it’s reasonable. You couldn’t say “I promise: I’ll win big for you like I’ve won for all of my other clients!” but then drop a tiny little footnote that says “But your mileage may vary.”
The other type of disclaimer tells readers that the information you put in your blog is not meant to create an attorney-client relationship and is for information only. This is important in a state like Arizona, where a layperson’s “reasonable belief” is sufficient to create an attorney-client relationship and neither money nor a fee agreement is required to establish a lawyer-client relationship.
If you need ideas for disclaimers, look at other lawyers’ and law firms’ websites. There are excellent examples out there. Here’s mine, which is pretty basic and casual:
[N]othing on this website should be construed as establishing a lawyer-client relationship between you, the reader, and me, the website owner who happens to be a lawyer. That also goes for anyone else whose content appears here. You're just reading this website. (For free, no less.) You may pick up some news and information about legal ethical rules specifically or the practice of law in general. You also may learn about the ethical rules and read my analysis -- and those of others -- about issues. But that doesn't mean you have a lawyer-client relationship with me specifically or any other lawyer whose writing appears here.
Contact information: ER 7.2(c) requires that any “communication” — any advertisement -- must include the name and “contact information” for the lawyer and/or law firm responsible for the content. Before 2014, this rule required that the advertising lawyer or law firm list the “office address.”
If your blog is considered advertising, you need to list your “contact information.” The rule doesn’t define “contact information,” but considering that the phrase replaced “office address,” clearly it means that other avenues of contact, including one’s website or telephone number, suffice.
If your blog is intended to be advertising, of course you’re going to have your contact information on it. You want potential clients to contact you. This should be easy.
If you include fee information: This is a sticky area. If you talk fees, make sure you comply with ER 7.2(d).
If your advertisement – your blog – includes information about your fees and indicates that your fee is contingent or will be a percentage of recovery, ER 7.2(d)(1) requires you to disclose that the client is “liable for expenses regardless of outcome unless the repayment of such is contingent upon the outcome of the matter” and whether the percentage fee is calculated before or after expenses are deducted from the recovery.
If you give a range of fees or hourly rates, ER 7.2(d)(2) requires you to tell any client “in writing at the commencement of any client-lawyer relationship that the total fee within the range which will be charged or the total hours to be devoted will vary depending upon that particular matter to be handled for each client and the client is entitled without obligation to an estimate of the fee within the range likely to be charged.”
If you state fixed fees for “specific routine legal services,” ER 7.2(d)(3) requires that you tell any client “in writing at the commencement of any client-lawyer relationship that the quoted fee will be available only to clients whose matters fall within the services described and that the client is entitled without obligation to a specific estimate of the fee likely to be charged.”
If you write in your blog about how you charge a specific fee, range of fees or hourly rate for a particular service, ER 7.2(d)(4) requires that you honor those amounts for at least 90 days “unless the advertisement specifies a shorter period.”
Must you label your blog “attorney advertising”? It depends whether it is a “targeted communication.” ER 7.3(c), which deals with soliciting clients, requires that
[e]very written, recorded or electronic communication from a lawyer soliciting professional employment from anyone known or believed likely to be in need of legal services for a particular matter shall include the words "Advertising Material" in twice the font size of the body of the communication on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication….
This label is required unless the recipient is a lawyer or someone with whom you have a family, close personal or prior professional relationship. If you have to label your blog because it is a targeted communication, you’ll also have to comply with other requirements in ER 7.3(c).
But is a blog a targeted communication? Comment 1 to ER 7.3 describes a targeted communication as one “initiated by the lawyer that is directed to a specific person and that offers to provide, or can reasonably be understood as offering to provide, legal services.” What if the communication -- like this blog post -- is not directed to a specific person? The comment adds:
In contrast, a lawyer's communication typically does not constitute a solicitation if it is directed to the general public, such as through a billboard, an Internet banner advertisement, a website or a television commercial, or if it is in response to a request for information or is automatically generated in response to Internet searches.
[Emphasis added.]
Once again, the answer is “it depends.” I can imagine a blog post that purports to be directed to the general public but actually is targeted to a specific person. If so, the blog post could be considered a targeted communication.
Next: Other ethical minefields in legal blogging