The recent story of the Virginia State Bar’s misconduct charges (PDF) against Virginia attorney Horace Hunter once again raises questions about the intersection of lawyers blogging and ethics rules relating to advertising.
Let’s frame some of the issues. Virginia, like most states, has rules governing Virginia attorneys with regard to advertising practices.
The misconduct charge first takes issue with a discrepancy between Mr. Hunter’s firm’s letterhead, identifying the firm as Hunter & Lipton PC, and the firm’s website which represents the firm as Hunter & Lipton, LLP.
Now look, I get it. Lawyers need to be very conscientious about how they represent themselves to the public. But a hearing and misconduct charge for this kind of error? A bit of over kill if you ask me. However, no one asked me. Nonetheless, this isn’t really the core of the charge, so let’s move along.
The next issue is based on some language from the firm’s home page, which the Bar contends makes at least one purpose of the website to market the firm and attract business. The Bar also references the site’s “News” and “Archive” tabs which discuss firm news and cases that the firm has handled.
The charge states that the Bar requested that the firm include a advertising disclaimer on the site pursuant to Rule 7.2(a)(3) to ensure that people visiting the site wouldn’t be misled.
According to the charge, Mr. Hunter declined to add a disclaimer arguing that his discussion of his cases was not an advertisement. In fact, Mr. Hunter proposed his own disclaimer, which states in part:
“This Week in Richmond Criminal Defense is not an advertisement, it is a blog.”
The Bar argues that the proposed disclaimer fails to put the discussion of case results in a context that is not misleading.
Finally, the Bar also charges that the website discusses client information, the disclosure of which would be embarrassing or detrimental to the client, without obtaining his clients’ prior consent. A wise rule with which there doesn’t appear to be much issue.
So, back to the crux of the matter, advertising vs. blogging.
What Is A Blog?
While not necessarily the most trusted source for all discussions, Wikipedia provides a pretty decent definition for a blog:
A blog (a blend of the term web log) is a type of website or part of a website. Blogs are usually maintained by an individual with regular entries of commentary, descriptions of events, or other material such as graphics or video. Entries are commonly displayed in reverse-chronological order. Blog can also be used as a verb, meaning to maintain or add content to a blog.
Most blogs are interactive, allowing visitors to leave comments and even message each other via widgets on the blogs and it is this interactivity that distinguishes them from other static websites.
Many blogs provide commentary on a particular subject; others function as more personal online diaries. A typical blog combines text, images, and links to other blogs, Web pages, and other media related to its topic. The ability of readers to leave comments in an interactive format is an important part of many blogs. Most blogs are primarily textual, although some focus on art (art blog), photographs (photoblog), videos (video blogging or vlogging), music (MP3 blog), and audio (podcasting). Microblogging is another type of blogging, featuring very short posts.
And since blogs may include commentary by the author, as well as, comments by readers, it stands to reason that, depending on the nature of the commentary and comments, some blogs might serve advertising and marketing purposes, while others would not.
For example, a blog with pictures of my cat playing with a ball or using the litter box, would be unlikely to be deemed advertising or marketing. Unless, of course, I sell cat toys or kitty litter.
And so, it seems that it is the context of the content that classifies it as advertising or non-advertising.
What Is Attorney Advertising?
As it relates to a lawyer’s website (a not in-person electronic communication to the public by a lawyer), attorney advertising is really a subset of public communications made, not in person, by a lawyer:
RULE 7.1 Communications Concerning A Lawyer’s Service
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:
(1) contains false or misleading information; or
(2) states or implies that the outcome of a particular legal matter was not or will not be related to its
facts or merits; or
(3) compares the lawyer’s services with other lawyers’ services, unless the comparison can be factually
(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.
(b) Public communication means all communication other than “in-person” communication as defined by Rule 7.3.
Combined with pertinent portions of Rule 7.2 in the instant case:
…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.
(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 not guarantee or predict a similar result in any
future case undertaken by the lawyer. The disclaimer shall precede the communication of 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 color and against the same colored background as the text used to advertise the specific or cumulative case results.
And so, in the instant case, it would seem, to my non-ethics-expert eye, that Mr. Hunter’s website communications might require a disclaimer under these rules. But, then again, people smarter than me might disagree.
Conspicuously absent from these rules is a definition of advertising. Sure the rules talk about communications advertising one’s services, but they don’t expressly state what constitutes advertising. And there in lies the rub.
Thoughts on Advertising
If we turn back to the old reliable, and Google dominating, Wikipedia, we see that advertising is:
a form of communication used to persuade an audience (viewers, readers or listeners) to take some action with respect to products, ideas, or services.
And if you prefer Merriam-Webster online:
c : to call public attention to especially by emphasizing desirable qualities so as to arouse a desire to buy or patronize : promote
Which seem accurate enough for our purposes here.
And while the language at issue on Mr. Hunter’s website seems to fall within the parameters of advertising, one can imagine language that is much less clear cut. Some possible gray areas:
- A lawyer posts to her website/blog a position she was elected to in a professional organization.
- A lawyer posts to her website/blog analysis of a recent judicial holding demonstrating her knowledge of the subject matter.
- A lawyer posts to her website/blog an opinion about how a generalized hypothetical legal scenario should come out.
- A lawyer posts to her website/blog a story about how the lawyer played golf with a judge.
- A lawyer posts to her website/blog that she argued before the Supreme Court of the United States.
Couldn’t any of these be construed as communications used to persuade an audience to take some action with respect to the lawyer’s services? Couldn’t any of these be construed as calling the public’s attention by emphasizing desirable qualities so as to arouse a desire to hire?
This is where advertising regulations seem to struggle greatly. For many of the folks that I have read regarding this issue, what constitutes attorney advertising seems to be a kin to Justice Potter Stewart’s definition of obscenity, “I’ll know it when I see it.”
Is it advertising to demonstrate one’s knowledge? I suppose it comes down to intent. If you’re intent is merely to muse in a public forum for your love of writing, then I suppose not. On the other hand, if your intent is to communicate to the public that you know a little something about something, with the hope that someone who reads it might be persuaded to hire you, then I guess it is.
Working With The Rules
In my experience working with lawyers on publishing and participating online, I have found that most lawyers are at best confused, and at worst, clueless about the interpretation and application of many of their Bar’s rules regarding these matters.
Sure, most understand (although don’t necessarily comply with) the don’t make false, fraudulent, misleading, or deceptive statement part.
But which adjectives are permissible, what has to be in disclaimers and how they have to appear, as well as, who can write what, when, where and how, is difficult for many diligent, well-meaning attorneys.
Does It Matter?
The purpose of this post really wasn’t to delve into whether or not attorney ethics rules are serving their purpose, protecting the public, or keeping up with the way and pace with which communications technologies are evolving. However, I can’t help but make a couple of observations.
Is it really the end of the world to require lawyers to post attorney advertising in their footers? On the other hand, I suppose for those that don’t write for the purpose of advertising, requiring them to place a label as despicable as advertising on their prose would be an outrage.
Do disclaimers actually protect the public? Do people even read disclaimers? Does the fact that a site says attorney advertising completely change the context of the content on a website? Does it play a role in the consumer’s decision-making with regard to the lawyer?
It seems to me that prohibiting false, fraudulent, misleading, or deceptive statements is enough. As the for the gray areas, well, that’s what grievances, hearings, lawsuits, and all the other wonderful forms of litigation that make America so great are for.