Tuesday, February 4, 2014

Are law firm blogs governed by advertising rules?

Real Lawyers Have Blogs is asking whether law firm blogs are governed by advertising rules: "...why throw blogs in with things that are closer to buying billboards and television ads? Am I the only one who sees blogging as a form of networking? Networking not unlike that done by lawyers before the Internet. Networking that really has nothing to do with advertising."

These are valid questions, and the easier one to answer is "why throw blogs with the billboards?"  I'll tell you why:  because some blogs are just like billboards.

Take a look at the blogs of the law firm in the Super Bowl ad I wrote about earlier tonight.  The first story in one of them is about a verdict the firm obtained.  I then glanced at a few posts in the other blogs.  Every single one of them ends with a paragraph that, in one way or another, advertises the firm.  For example:  "If you’ve been injured by a DUI driver, call ... for help.   We offer free consultations to review your claim, and our services are free unless we win your case." or "If you need to hire an experienced DUI injury lawyer, call .... Our attorneys will fight hard to get you maximum compensation for your case while making the process less stressful for you and your family."  or "If you have suffered injuries caused by a defective pharmaceutical product, please give us a call. Our team is prepared to answer any questions you may have, and we will evaluate the facts of your case to determine if it qualifies for a potential claim."...  You get the idea.  These blog posts are, in my opinion, clearly a form of advertising and I have no problem thinking that, if we are going to have rules related to advertising, they should apply to those blogs.

But not all blogs are created equal.  Compare those mentioned above with Litigation and Trial, the New York Personal Injury Law BlogDay on Torts and Abnormal Use all of which are published by, and the posts are authored by, practicing lawyers.  But they write about the law, not about their cases, not about how you should hire them, etc.  Those blogs, in my opinion, should not fall within the category of advertising. They provide news and commentary on the law and other matters of interest to their authors and their readers.

Which brings us back to the original question.  Are all blogs subject to the rules on advertising?   For now, the closest we have to an answer is "it depends." Perhaps until it is universally understood that a blog is something other than advertising, it depends on the content of the blog.  As the court decided in Hunter v. Virginia, if the case can be made that the content of the blog is disguised advertising, then a court can easily find that the blog is subject to the rules related to advertising.  (Go here to see my first post about Hunter, published before it was decided.)

In other words, I guess the answer to whether blogs are subject to rules on advertising is yes if the rules say they are, until someone challenges it and wins.

Unfortunately, I am not sure this answer is satisfactory for a law firm considering adding a blog to its website.  What if the state adopts a rule that says that law firm blogs will be subject to advertising rules (as it appears to be the case in Florida)?  The firm would have two options; the same two options Hunter had: to comply with the rules or to challenge them.   Hunter challenged them and lost.  The challenge in Florida is pending.

Stay tuned.

UPDATE 6/18/17:  The Professional Committee of the California Bar has issued an opinion on whether blogs are subject to advertising rules.  Go here for the details and links.