You love blogging. Who doesn’t? For some professionals, blogging is an important part of education, outreach and networking. But, as we’ve discussed previously, blogs may be considered advertising and, if so, ethical considerations apply. The State Bar of California Standing Committee on Professional Responsibility recently circulated a proposed opinion for public comment that addresses the ethical implications of blogging by attorneys. The opinion considers when a communication subject to the Rules of Professional Conduct on attorney advertising.
The opinion sets forth several situations involving attorney blog posts, including an example of a solo practitioner who wrote a blog on family law issues. The blog consisted primarily of short articles on topics of potential interest to other family law practitioners and divorcing couples, such as recent legislative developments in child and spousal support laws. The primary purpose of the blog was to demonstrate the attorney’s knowledge on family law matters. The blog, however, also included a hyperlink to the attorney’s professional web page and several of the blog posts instructed readers to contact the attorney if they had any questions about their divorce or custody case.
In analyzing whether the blog posts raise any ethical concerns, the committee first noted that commercial speech by attorneys is subject to certain ethical restrictions, but that informal education writing by attorneys for publication is generally considered core or political speech, which is fully protected by the First Amendment. Because most traditional blogs express the blogger’s knowledge and opinions on various subjects, the committee noted that they are typically not subject to speech restrictions. However, where a blog advertises an attorney’s availability for employment, the blogs may be subject to ethical rules and statutes.
In light of these considerations, the committee concluded that blogs that instruct readers to check out an attorney’s website or call for consultation do meet the criteria of advertising and would be subject to the rules of professional conduct. Thus, in the example provided, the attorney’s concluding statements in the blog posts for readers to call him would constitute an advertisement and ethics rules would apply.
Professionals should remain cognizant of the manner in which they use social media to promote their practice. While blogs, Twitter, Facebook and other forms of social media are a useful way to demonstrate experience, direct solicitations for business may be considered advertising subject to ethics rules. Professionals who ignore those rules may violate advertising requirements and expose themselves to risk.