New ABA model rules leave blogging v. advertising distinction murky

Debra Pickett is president of Page 2 Communications (www.page2comm.com).  A former newspaper columnist and television commentator, Pickett offers consulting and training services to law firms and lawyers who deal with the media.  She writes here each week on topics related to law and media.  To learn more, reach her at deb@page2comm.com.

Only eight years after the creation of Facebook, the American Bar Association has recognized social media as an important element in communicating with current and prospective clients.  Indeed, the model rules adopted at the annual meeting held here in Chicago earlier this month now include language that covers personal meetings, phone conversations and electronic communication.  The substance of the rules hasn’t changed: lying is bad and so is solicitation.  Also, telling secrets.

But the ABA missed an opportunity to clarify what has been a slight murky area in legal communication: blogging.

Specifically, is a blog an educational offering or an advertising venue?

Last year, Virginia attorney Horace Hunter received an admonition from his state’s bar association related to his “This Week in Richmond Criminal Defense” blog.  Though he maintained the blog, featured on his firm’s website, was simply an educational item, the bar association required him to add an attorney advertising disclaimer on the blog’s front page.

The message for conscientious attorneys (and their marketing folks) is clear: it’s best to err on the side of adding the disclaimer to your materials.

But the trickier, and more philosophically interesting, question remains unanswered.  What is advertising, really?

Traditionally, it’s not, say, authoring a prominently placed op-ed piece, even though doing so is clearly an activity that markets your firm, enhancing your reputation for expertise in a given area.  But it is distributing copies of that op-ed to an interest group whose members might be seeking legal representation in that field.

So, where, then, does tweeting out that same op-ed piece fall in the purely-informational-to-purely-promotional spectrum of activity?  The ABA isn’t offering any real guidance.

Does it matter, for example, if that organization happens to be following you on Twitter?  (And is there a substantive difference between a Twitter follower who found you, through a search, and a follower who was invited to follow you through a button on your webpage?)

For now, the best guidance on these questions is to try to follow the spirit of the ABA model rules (and ignore the nagging discomfort that this “know it when you see it” definition of advertising might inspire in you) by adding a disclaimer to any communication that you might reasonably expect to directly lead a prospective client to contact you.

Over the long term, though, it’s going to become essential to get more clarity on these guidelines.  Now that the ABA has acknowledged the existence of social media and other evolving forms of electronic communication, it’s time to lobby for the next step: a completely new generation of guidelines.

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