Can a Lawyer Blog?

By: Jeffrey Hamilton Geiger. This was posted Monday, October 31st, 2011

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From the title of the blog, I should probably amend it to ask whether a lawyer “may” blog as opposed to “can” blog.  I jest because I find that application of the rules governing lawyer advertising seem designed for fifth graders and zombies with a pulse (obligatory Halloween reference).

It would be remiss if I did not comment on the recent decision by the Virginia State Bar concerning lawyer blogging.  The bar complained that a lawyer’s blogging constituted an advertisement and, as such, should be subject to the rules governing such materials.  Specifically, the bar concluded that the lawyer failed to comply with the ethical rules because he (a) did not have permission from certain clients to publicize the facts and results of their litigation, and (b) failed to include a disclaimer that the results of one case cannot be indicative of other cases.

I have mixed emotions about the results of the case (which I understand will be under appeal).  I am not defending the lawyer’s blogging or condemning it.  My concern arises from comments in the blogosphere that this decision in some manner may have larger implications for lawyer’s interaction with social media.

Clearly, a lawyer should not disclose confidential information about a client even if it is “public.”  In other words, would you want your attorney talking about the fact that you had been arrested for a drug offense and gotten off?  No.  Even if the testimony was in open court, in the Information Age, what was once gossip is now part of your permanent record on the Internet.  Furthermore, it is probably fair to let the public know that just because you won fifty cases, it does not mean you will win their case (unless you hire me—just kidding state bar).  Imagine if a doctor only treated healthy patients; she could have a perfect record.  By way of comparison, a lawyer only taking on guilty clients will likely lose a few cases along the way.  In other words, the accounting of wins and losses can be perverted depending upon a host of circumstances.

Still, what the lawyer claimed was that he was merely providing news and commentary, even if he had been a participant in the making of the news and that his clients agreed ot his activities.  As I have reported previously, lawyers enjoy First Amendment protection and the Supreme Court has confirmed that it is not verboten for professionals to advertise. I would suggest only that care be taken in painting with too broad a brush what is considered advertising. If I post a message on Twitter about a court decision, I should be able to do so and not have to expend 135 characters to post a disclaimer.  If I post a message about a client’s case that has a significant impact on the state of the law, does that cross the line?  Is it any different if the attorney in the building next door, blogs about my case?

Stay tuned.


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