avvo webinar: ethics of blogging for lawyers
TRANSCRIPT
Avvo, Inc. Confidential - ©2014
Ethics of Blogging for Lawyers
by Josh King
Avvo, Inc.
Avvo, Inc. Confidential - ©2014
Josh King
General Counsel &
Vice President, Business Development
Avvo, Inc.
Twitter: @joshuamking
Email: [email protected]
Introduction
Avvo, Inc. Confidential - ©2014
• 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
Avvo, Inc. Confidential - ©2014
Avvo, Inc. Confidential - ©2014
Avvo, Inc. Confidential - ©2014
Avvo, Inc. Confidential - ©2014
Avvo, Inc. Confidential - ©2014
Avvo, Inc. Confidential - ©2014
Avvo, Inc. Confidential - ©2014
Legal Blogging Tips & Tricks
Consumption – Use A Reader
Tracking – Use Google Alerts
Finding Blogs to Read – Blogrolls
Blogging Platforms
RPC: Blogs as “Attorney Advertising”
“A lawyer shall not make
a false or misleading
communication about the
lawyer or the lawyer's
services.”
“A truthful statement
is also misleading . . . “
“. . . if there is a
substantial likelihood
that it will lead a
reasonable
person . . .”
“. . . to formulate a
specific conclusion
about the lawyer or
the lawyer's
services . . .”
“. . . for which there
is no reasonable
factual foundation.”
Types of RPC Restrictions
• Discussions of results obtained
• Comparisons to other attorneys
• Testimonials or client reviews
• Superlatives (PA technically bars attorneys from
labeling themselves as “experienced” or
“competent”)
• Statements that imply the ability to get results
• “Real-time, electronic solicitation”
Your Blog & the First Amendment
What “Communication” 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.”
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“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.”
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Hunter v. Virginia State Bar
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Blogging as Advertising
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Blogging as Advertising
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Blogging – Non-Advertising
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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
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Defamation Risks in Commentary
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Anti-SLAPP
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Unmasking Anonymous Commentors
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
• The test for fair use
• “Transformative” uses
• Parody vs. Satire
• Special considerations for photos
• Government documents
• DMCA notices
Avvo, Inc. Confidential - ©2014
Josh King
General Counsel &
Vice President, Business Development
Avvo, Inc.
Twitter: @joshuamking
Email: [email protected]
Questions?
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