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Battle of the Blog

Kevin O’keefe over at the Real Lawyers Have Blogs site recently posted that "lawyer blogs are not advertising." Several commentators, chipping in on this issue, point out that blogs are a way for lawyers to voice their personal opinions. Despite the overlap with traditional notions of "marketing," blogs take up a unique space on the Internet. Web sites are oftentimes clearly advertising. But the primary function of blogs is to provide information. That information is provided from the viewpoint of the author of each post. The author provides information and a viewpoint (bias) about that information. It is extremely personal. Here’s what David Curtin, chief disciplinary counsel of the Rhode Island Supreme Court Disciplinary Counsel in the Providence Business News:

An attorney has a right, just like anyone else, to publicly express his or her opinion, and without government regulation. Whether a blog is [considered] an advertisement would depend on the content of the blog.If an attorney’s blog were to bolster his firm’s services in a particular area, that might be considered advertising......If a potential client contacts a lawyer after reading a blog, there is nothing wrong with that.

This interesting issue keeps popping up in the blogosphere. Those who say that the ethics rules should control lawyer blogging either fail to realize or intentionally want to keep information from the general public. We have to remember that most firms are built around the concept of secrecy. They would never want mass information to get out to the public. For heaven sake, that’s free legal advice!

Take one of my sites over at Traverselegal.com. I have a domain name dispute blog that provides tremendous amounts of free information to anyone wanting to learn about cybersquatting.

While there is a marketing component to my site, the thrust of the content is to provide information. The overwhelming majority of people who visit this particular blog simply use the free information and opinions of the author (me) for their own purposes. In many instances, these blog visitors may decide not to retain an attorney because they already have the answer to their question.

There are certainly lawyers, law firms, and professional organizations out there who see this model as a threat. There are firms that want an educated client. There are firms who want to keep their client in the dark in order to bolster their own expertise. Regardless, blogs are far more about information than they are marketing. If a client decides to retain an attorney after visiting their blog, all the better. But that doesn’t change the essential nature blogging.


Dan Schwartz

I think it's an issue that's likely to repeat itself. Before I started my blog, I requested advice from the state legal ethics board about whether the blog would be considered advertising. They said yes, but, because it's online, it need only comply with the online registration requirement (register the domain name), not the more onerous "print and television ad" requirements (provide copies of each ad).

In any event, I think it's an issue that state bars are going to continue to struggle with until a consensus can be reached.

Greatest American Lawyer; Greatest American Law Clerk; Greatest American Law Firm

Advertising is regulated so that a client does not feel undue pressure to retain an attorney. A blog is not an attorney handing out business cards bedside after an accident. A blog is an educational tool that allows clients to inform themselves of the issues they face, possible avenues of remedying those issues, and possible outcomes. A blog is a no different from a Tuesday night free legal aid clinic in that it provides general information and direction for undefined legal problems. A blog is pro bono work for the new millenium.

Placing an advertising disclaimer on a blog that says past results are not indicative of future results and that each case is fact specific should be enough to educate the potential client such that there is no undue pressure or promise of unobtainable results.

The best lesson for lawyers trying to regulate such blogs under legal ethics rules governing lawyer advertising will be when those same lawyers visit the domain dispute blog to educate themselves about the novel legal issues facing their potential clients. Hypocrisy aside, only then, or even better when their client knows more about the issue than them, will they recognize the value of such blogs.

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