Posted by wlansden |
Filed under commentary, technology
By James Bowden
The American Bar Association Commission on Ethics 20/20 Working Group on the Implications of New Technologies has published an Issues Paper Concerning Lawyers’ Use of Internet Based Client Development Tools and is requesting comments. Seeing as how the Young Lawyers’ Blog has both “Lawyers’” and “Blog” in our name, I felt obligated to provide my comments with reckless disregard for the instructions provided by the paper for the method of their delivery. In the interest of providing a cogent analysis succinct enough for young lawyers to not lose interest in, I’m going to ignore all elements of the paper not directed at blogging (although I’ve probably lost you already).
The main thrust of the paper’s discussion of blogs is the recognition that blogs maintained and contributed to by lawyers generally fit on a continuum somewhere between those residing on a law firm’s website that are clearly designed to serve an advertising and marketing function and those that are purely personal blogs which have nothing to do with a lawyer’s practice or the law. Where on the continuum a lawyer’s blog lies is a not unimportant question, especially considering that a blawg residing on a law firm’s website for advertising and marketing purposes would “almost certainly have to comply with the relevant state rules of professional conduct.” Even though the managing partner threatens to cut off the power to my office every time I say it, the Young Lawyers Blog is affiliated with Waller Lansden Dortch & Davis, LLP, but independent editorially (see disclaimer). So I reviewed the content of our website, analyzed our relationship with the firm, perused comments opining that I am a “troglodyte,” and came to the conclusion that the Young Lawyers Blog is not purely designed to serve an advertising and marketing function. The Young Lawyers Blog is actually a blog about the Apple iPad, with snark.
The Working Group’s paper doesn’t really provide much in the way of answers to ethical considerations raised by the blogosphere, and don’t really come off as having much exposure to the blogosphere (c.f. the stilted definition given for a “blog”: “A blog is an Internet forum (a ‘web log’) that offers opinions or information, sometimes on a particular issue, such as intellectual property.” (note: nice save, Working Group – intellectual property law is all the rage with the cool kids these days!)). Instead, they provide a summary of questions for comment, which I, as Ambassador to the Working Group on the Implications of New Technologies for the Young Lawyers Blog, a title I earned by sheer chance and which I do not take lightly, will now answer in a flippant manner.
- I’m pretty sure blogs function just like any other writing that a lawyer publishes – if it is advertising, it is advertising. If not, it isn’t. I’m not a fan of considering blogging manifestly different from any other medium, requiring special treatment. In any case, doesn’t Rule 7.2 cover attorney advertising using blogs pretty effectively?
- Probably not necessary - See #1. Alternatively, an explicit statement that a blog is “public media” as used in Rule 7.2, made without a hint of irony at its redundancy, might be appropriate/entertaining.
- I think the touchstone here should be the purpose of the discussion forum or comment that the lawyer has created. If the purpose is advertising, then yes, disclosure is proper. If not, then not necessarily. For the grey areas, a lawyer treads at her own risk. The only special case here is that of the anonymous commenter – the ninja assassin of the blogosphere. My read on anonymous posters, however, is that an attorney putting together a problematic anonymous comment is far more likely to run afoul of Rule 1.6 than anything in Article 7, or alternatively commit defamation of character. Also, who doesn’t want to be identified as a lawyer? Lawyers are cool – watch Law and Order some time. Or The Deep End. On second thought, don’t watch The Deep End, ever.
- This one is a tough one for me to comment on, because I’m not particularly familiar with JD Supra; the first thing that jumps out at me, though, is the tagline, “Give Content. Get Noticed.” So I’m going to go with Yes, Article 7 of the Model Rules applies. But even if it doesn’t, what lawyer would upload a crummy, error-ridden piece of garbage work product to a website used and reviewed by her competitors?
I’m not trying to make light of the ethical implications presented by blawgs; I’m actually very interested in them. But I do think that legal advertising and the rules that surround it, not to mention applicable First Amendment jurisprudence, is well developed enough to handle the issues presented by the internet. Attorneys using social media for advertising or non-work related activities alike should use appropriate caution. I don’t think that the idea that people need to be careful as far as what ends up on the internet is any secret; but if you need a couple of pointers, I think we can set up a panel discussion.
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