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Webinar Notes – Ethical Blogging for Lawyers (10/8/15)

by merlin on October 9th, 2015
  • Sumo

Yesterday, I watched and took notes on this Avvo webinar, and I share those notes with other aspiring blogging attorneys:

Ethical Blogging for Lawyers

October 8, 2015; Avvo Webinar

 

Moderator: Josh King (Avvo – josh@avvo.com; maintains “Socially Awkward” blog)

 

  • Why blog?
  • How?
  • Advantages?
  • Is your blog “attorney advertising” forbidden by the Rules?
  • Avoiding copyright infringement

 

Different forms of Legal Blogs:

  • Sometimes the posts focus specifically on the area (physical, topical, etc.) of law
  • Sometimes the posts focus instead on tangential aspects of law (stress relief methods, etc.)
  • Big law firms typically maintain important updates on niche areas that get followed; may have several different authors
  • Legal humor; often sarcastic, and entertaining views on things of note that happen

Resources:

feedly” – a free Reader for blogs you follow; condenses the updates (CHECK THIS OUT)also look at “Google Alerts

 

Key: READ OTHER BLOGS OFTEN!  This keeps you up-to-date, and gives inspiration for topics

 

Blogging Platforms:

  • Lexblog ($$$)
  • Google (Bloggr) and Tumblr (free, but not good for lawyers, because they may go under)
  • WordPress (free – I use it and like using it); TypePad (also free; also recommended for attorneys to use)

 

Blogs as “Attorney Advertising”

  • Don’t discuss:
    • Results obtained
    • Comparison to Other Attorneys
    • Testimonials or client reviews (???)
    • Superlatives
    • Statements that imply the ability to get results
    • Real-Time, economic solicitation
  • You STILL have First Amendment Rights!!!!
    • Lawyer speech CAN be regulated, BUT State carries burden in showing that its regulation of free speech meets intermediate scrutiny (commercial speech = “that which does no more than propose a commercial transaction”); Is it in advertising format? Does it reference a specific product?  Does it have an economic motive?  Even if so, full protection still applies if non-commercial speech is inextricably intertwined

Central Hudson Gas & Electric Co. v. Public Service Commission (1981)

 

Hunter v. VA State Bar:          Opinion does a good job of analyzing the above factors to determine that it WAS, in fact, HIS commercial speech (he was advertising) – the blog was a sub-page on his website (like mine)

 Danger is crossing over from being a blog to being solely advertising!

  • Remember: Blogging SHOULD NOT be about marketing, only. The writer is trying to get their EXPERTISE and methodology out there, NOT a marketing focus (this is incidental, and should only EVER be incidental)

 

What about using the author’s real identity versus using a pen-name?

  • No ethical prohibition against it, and using a ghost-writer is okay to help out, but there is a substantial danger if you did not actually produce the content (ethical complications, and it defeats the purpose of lawyer-improvement by writing that blog)

Defamation and Third-Party Comments

I have comments turned on, but nobody uses them – WordPress scrubs the spam (and no other comments, apparently), via Akismet.

  • With WordPress, people can be listed as “trusted”; can comment at will
  • 47 USC § 230- Piece of Communications Decency Act that survived finding of unconstitutionality; meant that author and ISP is not viewed as responsible for a person’s defamatory comments (unless material hand in the comment, too);
  • Pre-empts State law, and commonly known as CSA 230
  • What about defamation?
    • Truth is an absolute defense;
    • Opinion is USUALLY a defense;
    • Cannot be a statement that you just don’t like, but needs to be something misrepresented as the truth
    • “Single publication date” provides a defense – SOL runs from first publication

Unmasking Anonymous Commentors

You don’t get it automatically just because you subpoena it; going to have to meet the balancing test for need to get it and First Amendment rights of the commenter.

  • Got to avoid disclosing client confidence (Don’t run afoul of anything that would be embarrassing to the client)
  • Cannot go too far; person involved with the parties might be able to recognize the individuals involved (in other words, make the blog even more vague)

Fair Use

            Can’t just re-post entire other blog post; attribution back to the original post is NOT ENOUGH (sterilize FB, too?)

Government Documents: Generally always free of copyright; obey a takedown notice, though.

 

Go to copyright.gov ($105, take advantage of the “safe harbor” copyright provisions).

 

 

 

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