ETHICS OF BLOGGING FOR LAWYERS

by Josh KingAvvo, Inc.

Josh KingChief Legal OfficerAvvo, Inc.

Twitter: @joshuamkingEmail: josh@avvo.com

Introduction

• 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: josh@avvo.com

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