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ETHICS OF BLOGGING FOR LAWYERS
by Josh KingAvvo, Inc.
• The Blogging Landscape• Blogs: “Attorney Advertising” Under the RPC?• . . . or Expression Protected by the First
Amendment?• Defamation and Third-Party Comments• Blogging About Clients• Copyright Considerations• Closing Thoughts
Overview
The Blogging Landscape
Legal Blogging Tips & Tricks
Consumption – Use A Reader
www.feedly.com
Tracking – Use Google Alerts
Finding Blogs to Read – Blogrolls
Blogging Platforms
RPC: Blogs as “Attorney Advertising”
Your Blog & the First Amendment
What Lawyer Speech Can Be Regulated?
Regulation of “Commercial Speech”
Central Hudson Gas & Electric Corp. v Public Service Commission (1980)
“Commercial speech” defined
“That which does no more than propose a
commercial transaction.”
“Mixed” Content
• Dex Media v. City of Seattle (2012)
• Is publication as a whole commercial speech?– Ad format– Reference to specific
product– Economic motive
• Even if so, full protection applies if commercial/non-commercial speech is “inextricably intertwined.”
Hunter v. Virginia State Bar
http://sociallyawkwardlaw.com/californias-proposed-ethics-opinion-on-lawyer-blogging-is-out
Blogging as Advertising
Blogging as Advertising
Blogging – Non-Advertising
Defamation and Third-Party Comments
“The Law that Makes the Internet Go”
• 47 U.S.C. § 230• Commonly known as “CDA 230”• “No provider or user of an interactive computer
service shall be treated as the publisher or speaker of any information provided by another information content provider.”
• Blanket immunity from defamation liability for third party comments
• Preempts state law
Defamation Basics• A claim for damages to reputation based on false
statements of fact– Truth is an absolute defense– Opinion is usually a defense– Heightened standard for public figures to claim
defamation– Substantial truth– Fair report
• Statute of limitations & the “single publication” rule
Defamation Risks in Commentary
Anti-SLAPP
Blogging About Clients
In re Peshek (2009)• Attorney blogger disciplined for referring to
criminal clients• Used alias, but court determined the identities
could be figured out• Confidential info• Non-confidential info that may be “embarrassing
or detrimental” to clients
Copyright Considerations
Fair Use & “Borrowing”• Quotations for criticism and commentary• “Transformative” uses• Parody vs. Satire• Special considerations for photos• Government documents
Josh KingChief Legal OfficerAvvo, Inc.
Twitter: @joshuamkingEmail: [email protected]
Questions?
Stay up to date on developments in the law of social media – and get notification of upcoming free Avvo CLE webinars – with my new monthly email newsletter:
“Socially Awkward – Where Social Media Meets the Practice of Law”
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