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Vol 12, Num 1 l March 2014

Technology and Intellectual Property

► In This Issue:

Trying to Clear the Fog over Blogs

ABI

by Jamie L. Edmonson

Venable LLP
Wilmington, Del.

Two recent ethics opinions issued by the New York State Bar Association’s Committee on Professional Ethics,[1] as well as a recent decision from the Virginia Supreme Court,[2] are spotlighting some of the issues surrounding the ethical standards regarding the propriety of attorney blogs and the contents thereof.

NYSBA Opinion 912: “Publishing Criticism of Other Attorneys”
Opinion 912, issued on March 5, 2012, holds that the New York Rules of Professional Conduct do not prohibit a lawyer from hosting or participating in a blog dedicated to publishing factually accurate criticism of another lawyer’s professional conduct. The New York Committee on Professional Ethics initially looked to New York Rule 8.2 for guidance; however, that rule only addresses lawyer criticism of members of the judiciary.[3]

There is no comparable provision specifically addressing public criticism of a lawyer by another lawyer.
The Committee then looked to New York Rule 8.4(c), which prohibits a lawyer from engaging in conduct “involving dishonesty, fraud, deceit or misrepresentation,” and New York Rule 8.4(d), which prohibits a lawyer from engaging in conduct that is “prejudicial to the administration of justice.” In applying both rules, the Committee found that neither rule applied so long as the blog criticism is sufficiently accurate.

Opinion 912 was issued in response to an Internet blog used as a forum for lawyers to publish factually accurate criticism of an adversary’s professional conduct. Although it found that the rules do not prohibit a blog dedicated to publishing factually accurate criticism of another lawyer’s conduct, the Committee noted that the “Standards of Civility” adopted by the Uniform Court System provide a norm of acceptable behavior for the practice of law, although the standards are aspirational and not intended to be enforced by sanction or disciplinary action.

While the New York Rules don’t seem to limit the ability of a lawyer to criticize another attorney, assuming that the criticism is factually accurate, the use of blogs for other means, such as to advertise legal services or to seek retention from potential clients, is likely subject to ethics rules, both in New York and in other jurisdictions.

NYBSA Opinion 967: “Lawyer Advertising”
Opinion 967, issued on June 5, 2013, holds that a blog written by an attorney that does not discuss legal topics and is not primarily geared toward the retention of the lawyer is not an advertisement and, therefore, is not subject to the rules regarding lawyer advertising.

Opinion 967 was issued after a blogger, who is also an attorney licensed in New York, made an inquiry to the New York State Bar with respect to a proposed blog, which was to be written for his employer. The proposed blog would not address legal topics, but would include posts promoting work/life balance. The issue was whether the blog was an advertisement subject to the retention and preservation requirements of the attorney advertising rules. New York Rule 7.1 contains extensive requirements with respect to attorney advertising, and New York Rule 7.1(k) provides, “Any advertisement contained in a computer-accessed communication[4] shall be retained for a period of not less than one year. A copy of the contents of any web site covered by this Rule shall be preserved.” The rule applies only to those computer-accessed communications that are deemed “advertisements.”[5] After determining that the blog was a public communication made by the lawyer, the Committee turned to the issue of whether the blog “is for the retention of the lawyer.”

Recognizing that the attorney’s blog would not discuss legal issues and that the attorney did not intend to solicit clients for a law practice, the Committee held that the blog was not an advertisement, although the name of the blog author indicated that the author was an attorney. In contrast to New York, however, other states, including Virginia, are more restrictive in what is considered an advertisement for purposes of an attorney blog.

Hunter v. Va. State Bar
Horace F. Hunter, an attorney with Hunter & Lipton in Richmond, Va., maintained a blog, “This Week in Richmond Criminal Defense.” The blog was accessible through the firm’s website and discussed a variety of legal issues and cases. Most of the posts described cases in which Hunter had obtained favorable results for his clients.

The Virginia State Bar investigated Hunter’s blog and determined that it constituted advertising under the Rule 7.1 of the Virginia Rules of Professional Conduct.[6] The Bar also charged Hunter with violating Virginia Rule 7.2(a)(3), on the grounds that he disseminated case results in advertising without the required disclaimer,[8] and Virginia Rule 1.6, on the grounds that he disseminated client confidences without their consent.

Hunter challenged the Bar, arguing that his blog was primarily political speech, not commercial speech. Hunter argued that a the Bar could not use its advertising rules to regulate noncommercial speech, and any attempt to regulate noncommercial speech had to be tested under the Constitution’s “strict scrutiny” standard. In regard to the charge that he breached Virginia Rule 1.6, Hunter asserted that his statements about his former clients were made in a public proceeding and were, therefore, not confidential, or alternatively, that the Bar’s application of Virginia Rule 1.6 to the blog was an unconstitutional abridgement of his free speech rights.

The Bar ruled that Hunter’s blog violated all three of the Virginia Rules and imposed a public admonition that included a requirement that Hunter remove case-specific content from the blog for which he had not received client consent, and that he post a disclaimer complying with Virginia Rule 7.2 on all case-related posts. Hunter appealed to the Virginia Court of Appeals, which overturned the Bar’s ruling that the blog violated Virginia Rule 1.6, but the court did affirm the ruling that the blog violated the rules regarding advertising. The court ordered that Hunter post the following disclaimer: “Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.”

Hunter appealed to the Virginia Supreme Court, which issued its opinion on Feb. 28, 2013. The court ruled that Hunter’s blog posts did not violate client confidentiality under Virginia Rule 1.6 because all of the posts involved cases that had been concluded and contained public information that would have been protected speech if the media or others had disseminated it.

The court also ruled that Hunter’s blog posts were a form of commercial speech, rather than political speech, and could be regulated by the Bar, as the statements or claims made were potentially misleading without the required disclaimer. The court reversed and remanded that part of the lower court’s ruling for the imposition of disclaimers that fully comply with Virginia Rule 7.2.[8]

Summary
Although the application of rules of professional conduct with respect to social media and blogs is still evolving, many law firms have implemented their own social media policies in an attempt to circumvent any potential disciplinary action of their attorneys. In the area of social media, the prudent course is to always assume that compliance with the ethical rules is required.

 

1. New York State Bar Association Committee on Ethics, Opinion 912 (March 15, 2012) and Opinion 967 (June 5, 2013).

2. Hunter v. Va. State Bar, 744 S.E. 2d 611 (Va. 2013), cert. denied.

3.A lawyer shall not knowingly make a false statement of fact concerning the qualifications, conduct or integrity of a judge or other adjudicatory officer or of a candidate for election or appointment to judicial office.”

4. New York Rule 1.0(c) defines “computer-accessed communication” as “any communication made by or on behalf of a lawyer of law firm that is disseminated through the use of a computer or related electronic device, including, but not limited to, web sites, weblogs, search engines, electronic mail, banner advertisements, pop-up and pop-under advertisements, chat rooms, list servers, instant messaging, or other internet presences, and any attachments or links related thereto.”

5. New York Rule 1.0(a) defines “advertisement” as “any public or private communication made by or on behalf of a lawyer or law firm about the lawyer or law firm’s services, the primary purpose of which is for the retention of the lawyer or law firm.”

6. Virginia Rule 7.1 provides:

  1. A lawyer shall not, on behalf of the lawyer or any other lawyer affiliated with the lawyer or the firm, use or participate in the use of any form of public communication if such communication contains a false, fraudulent, misleading, or deceptive statement or claim. For example, a communication violates this Rule if it:

(4) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law.

7. Virginia Rule 7.2(a)(3) provides:

  1. Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded, or electronic communications, including public media. In the determination of whether an advertisement violates this Rule, the advertisement shall be considered in its entirety, including any qualifying statements or disclaimers contained therein. Notwithstanding the requirements of Rule 7.1, an advertisement violates this Rule if it:

...
(3) advertises specific or cumulative case results, without a disclaimer that (i) puts the case results in a context that is not misleading; (ii) states that case results depend upon a variety of factors unique to each case; and (iii) further states that case results do no guarantee or predict a similar result in any future case undertaken by the lawyer. The disclaimer shall precede the communication or the case results. When the communication is in writing, the disclaimer shall be in bold type face and uppercase letters in a font size that is at least as large as the largest text used to advertise the specific or cumulative case results and in the same colored background as the text used to advertise the specific or cumulative case results.

8. In April 2013, the Virginia Supreme Court adopted amendments to the Virginia Rules that eliminated Rule 7.2 but retained the disclaimer requirement as Rule 7.1(b). The amendments became effective July 1, 2013.

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