Go Tell The California Bar What You Think About Blogging Right Now

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If you are a California attorney with even the remotest bit of blogging savvy, it may be time for you to respond to this Request for Comment from the the State Bar of California. We already know that most legal marketing ethics rules are a hot over-regulated mess. California’s State Bar wrote a far-too-many-words position paper with a draft formal opinion of what a law blog is and when they get to regulate it.

Under what circumstances is “blogging” by an attorney subject to the requirements and restrictions of the Rules of Professional Conduct and related provisions of the State Bar Act regulating attorney advertising?

1. Blogging by an attorney is subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising if the blog expresses the attorney’s availability for professional employment directly through words of invitation or offer to provide legal services, or implicitly through its description of the type and character of legal services offered by the attorney, detailed descriptions of case results, or both.

2. A blog that is a part of an attorney’s or law firm’s professional website will be subject to the rules regulating attorney advertising to the same extent as the website of which it is a part.

3. A stand-alone blog by an attorney that does not relate to the practice of law or otherwise express the attorney’s availability for professional employment will not become subject to the rules regulating attorney advertising simply because the blog contains a link to the attorney or law firm’s professional website.

Now, the bar’s proposed categories of lawyer blogs aren’t terrible, but you know there is going to be a pile of stupid coming their way on this, so you best get writing.

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  • If you’re going to submit a comment, definitely read Josh King’s post on the proposed opinion, first.

  • I will be submitting a comment on this… thanks for the headsup.

    Josh King’s post gets to the same question I had when I first saw this, namely, if the opinion goes the wrong way it could sweep in lawyer blogs that do not have the explicit “contact me if you need legal help with this issue” at the end of the post, but that nonetheless talk about the law, even if only occasionally. Or good blogs that happen to exist on a law firm’s domain that allow the client to contact the firm somewhere in the sidebar or footer of the page, or that just list contact info somewhere on every page. I.e. basically any reputable lawyer blog. (For instance if Max Kennerly’s Litigation and Trial blog was in CA, should that get regulated as advertising? I would hope not.)

    I think a good rule would lump SEO-ish spammy blogs in with “advertising,” while leaving the vast majority of actual legit content alone, rather than relying on mostly meaningless distinctions relating to domain names or website contact fields.

  • Paul Spitz

    As a member of the California bar, I really don’t care if the state bar considers my blog to be advertising. I don’t have an explicit “call me” in any blog posts, but the blog is part of my firm website, and every page says “call us” at the top, in the header. And frankly, implicit in every post is the message that if someone is affected by the issue I’m writing about, they should call me. So yes, it’s advertising. Big deal. My website terms of use have “This website constitutes an advertisement for legal services” as the very last line.

    I guess the bigger issue, which Josh King touches on, is whether there is anything fraudulent or misleading in a blog post, or whether the attorney is guaranteeing results. My posts don’t run afoul of that, so I don’t care whether the bar calls them advertisements. I’m sure there are attorneys out there that run afoul of that, and if you like fun reading, the California Bar magazine devotes about 10 pages of every issue to all the attorneys being punished for some kind of misconduct. If you conduct yourself with class, you’ll be fine. If you act like a sleaze ball, you won’t.