Question

I recently read about lawyers who blog as part of their marketing activities. Are lawyer blogs subject to the advertising requirements of the Wisconsin Rules of Professional Conduct?

Answer

That issue has not been addressed specifically in either a court decision or an ethics opinion in Wisconsin. However, recent ethics opinions from other states strongly suggest that a lawyer blog is subject to the requirements on lawyer marketing found in the Wisconsin Supreme Court Rules of Professional Conduct (SCR ch. 20). SCR 20:7.3 addresses lawyer advertising; however, the requirements of SCR 20:7.1 are more on point. That rule says that communications about lawyers’ services may not be “false or misleading.” The rule then defines what would be considered false or misleading statements about a lawyer’s services.

The real debate regarding a blog prepared by a lawyer focuses on the content of the blog and the lawyer’s purpose and intent when issuing the blog. The California State Bar’s Committee on Professional Responsibility and Conduct (the committee) developed a draft opinion that has been published for review before being finalized. In that opinion, the committee held that a blog prepared by a lawyer is subject to the Rules of Professional Conduct if:

• The blog expresses the lawyer’s availability for professional employment directly through words of invitation or offer to provide legal services;

• The blog expresses the lawyer’s availability for professional employment implicitly through its description of the type and character of legal services offered by the lawyer, including detailed descriptions of case results; and

• The blog is included as part of the lawyer’s or law firm’s professional website and therefore was prepared for the purpose of announcing and “advertising” the availability of legal services.

The conditions above seem logical although their application to specific blogs will depend on the content of the blog and whether the blog refers either directly or implicitly to the lawyer’s services. The draft opinion also provides that a stand-alone blog by a lawyer that does not focus on legal topics or the lawyer’s availability for professional employment would not be subject to the lawyer advertising rules. Such blogs would include, for example, one that is about sports, wine, or another interest of the lawyer and that is not linked to the services the lawyer provides. This is also subject to interpretation because, for example, a blog prepared by a lawyer about sports news may fall under the lawyer advertising rules if the lawyer practices sports law.

The real debate regarding a blog prepared by a lawyer focuses on the content of the blog and the lawyer’s purpose and intent when issuing the blog.

Blogging has become a part of many lawyers’ activities. Most often a blog is done to show the lawyer’s knowledge and background and is intended to create opportunities for being hired in a particular area or practice. Those types of blogs must follow the lawyer advertising rules and may not contain false or misleading information.

Also, such blogs must avoid making promises or assurances of results that could be obtained by the lawyer. Lawyers who blog about cases should take special caution to ensure that clients’ identities are not disclosed inadvertently or through the use of identifying information.