Friday, February 24, 2017

Should You Put Disclaimers on Your Legal Blog Posts?

There has been ongoing conversation and even state bars have weighed in on the topic of legal blogs, advertising, and required disclaimers. In general, state bars prohibit lawyers from advertising anything that can be misconstrued as misleading. That includes discussing previous wins on your blog.

Journalism vs. Advertising

Many have argued that legal blogs resemble journalism, rather than advertising.

In fact, Rodney Smolla, the former dean of Washington and Lee University of Law, leading First Amendment scholar, and current president of Furman University of South Carolina, stated that he didn’t ”think the mere fact that a lawyer has been involved in a case means everything a lawyer says about it is an advertisement for future clients. Lawyers talk about their own cases all the time, in public settings, publications … and members of the public are able to take that speech for what it’s worth.”

This revelation came back in 2011, when Smolla defended Virginia attorney, Horace Hunter, because Virginia State Bar brought a misconduct charge against Hunter regarding his blogs, which included previous cases his firm won, as well as local and national criminal justice topics. The state bar stated that Hunter’s blog was advertising and required a disclaimer that told readers clearly that it was an advertisement.

Hunter, on the other hand, contended that his blog was commentaries and news stories. He further argued that the state bar’s requirement to add a disclaimer to his blog posts violated his rights under the First Amendment. However, because Hunter’s blog posts referred to cases that his firm won, it seemed to the state bar that Virginia Ethics Rule 7.2 should be upheld. Virginia Ethics Rule 7.2 once said that when attorneys are discussing or listing previous cases that they have won, it should be considered advertising and a disclaimer that states that all cases and outcomes are different must be written along with it.  

Ethics Rule Deleted

However, on July 1, 2013, amendments were approved to delete Virginia Ethics Rule 7.2. This deletion puts us back to the beginning, wondering whether disclaimers absolutely, positively must be used or not. It also leaves the decision about whether or not legal blogs are considered as advertising or not up to the discretion of each individual state bar.

Some states believe that if a legal blog is attached to a law firm’s website, the blog is considered advertising because a website is a form of advertising and the blog is a part of it, rather than being a stand-alone blog. Other states believe that if certain information is discussed on a blog, such as previous case wins, that is considered advertising and should include a disclaimer. Some states say that using a “call-to-action” at the end of a blog post is advertising. All of the state bars state, in some form or fashion, in their ethics rules that lawyers should not make misleading or false statements – and simply omitting important information is enough to be charged with an ethics violation.

Needless to say, it is important to check with your state bar’s ethics rules regarding blogging and decide whether or not you should be using disclaimers on your blog. Contact Law Blog Writers if you need help building the content, as well as advice, on your legal blog.

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