Sometimes the legal ethics rules
can be a bit draconian. This post talks about the legal ethics rules that were recently put forth by New York. A reading of the new New York rules, leads me to beleive that legal blogs will become a thing of the past -- even for non-New York licensed lawyers.
The new New York rules expressly apply to non-New York licensed attorneys if their legal blog may be accessed by a New York resident or
who provides legal services to New York residents. Thus, this New York rule essentially prohibits any lawyer anywhere from maintaining a legal blog
A legal blog seems to fit the definition of a “computer-accessed communication” under the new New York rules. If this “communication” is about a lawyer or law firm or it indicates that the lawyer or firm is available for professional employment, the legal blog will no doubt be an “advertisement” or a “solicitation.”
This is probably a correct interpretation as one of the purposes of maintaining a legal blog is to alert the public about ones practice and availability (you don’t have to take my word for it, you just have to view some of the legal marketing blogs
and articles by the legal marketing guru
’s out there. I suppose there are exceptions, such as anonymous blogs like The Greatest American Lawyer
, but not if the anonymous lawyer's identity were to become known).
The new New York rules expressly prohibit “advertisements” or “solicitations” that are “interactive
computer-accessed communications,” unless the communication is only accessed by the lawyers or firms “close friend, relative, former client or current client.”
A legal blog will probably be a prohibited communication under the new rules if it is “interactive” in any way. Thus, legal blogs apparently can no longer allow users to post comments, legal bloggers cannot read or reply to correspondence from blog readers, and legal blogs cannot carry on dialogues or article topics with other blogs. In short, legal blogs cannot be blogs. If the blog is interactive, then it can only be disseminated to a “close friend, relative, former client or current client.” Legal bloggers will now need to be wary of allowing anyone other than “close friend[s], relative[s], former client[s] or current client[s]” from accessing their blogs.
I suppose that the larger firms could set up some sort of private intr“A”net to disseminate their legal blog, to ensure that it is only accessible by these persons. The firm could then expend resources to monitor the intranet to ensure that there are no intrusions by non-close friends, relatives, former clients or current clients. It may be particularly difficult for firms to police the intranet to prohibit access by mere friends who are not quite “close friends” or distant “relatives” that New York may deem to be too remote to qualify as “relatives.”
This leaves me wondering how “close” is “close,” if we all aren’t “relatives” of each other in some capacity (surely there is some common ancestor way back, right?), and how New York is going to make these judgments. I can already envision someone arguing that we are all descendants of Abraham and the New York Bar taking the opposite position. I also wonder what will happen when an associate leaves the firm, but the associate’s close friends or relatives continue to access the legal blog…
Perhaps some attorneys and firms will modify their blogs to ensure that they are not “advertisements” or “solicitations.” In that case, the lawyers and firms will have to remove any offending language indicating that the lawyer or firm is willing to provide legal services. This would probably require lawyers and firms to remove any “contact us” link or request and possibly even email addresses. This may even mean that the blog should be hosted on a website separate from the lawyers or law firm’s main website using a different domain name. (I know what you are thinking, unfortunately, the way the new rules are worded it appears that the lawyer or firm simply cannot simply state that they are not accepting or are unwilling to provide legal services.)
And just in case the legal blog is found to be an “advertisement” or “solicitation,” as a precaution the lawyer or firm will want to entitle the page "Attorney Advertising
,” as required by the new New York laws. Unfortunately such a statement, which may be required, implies that they lawyer is willing to provide legal services – which violates the previously mentioned rule. This tautological fallacy probably means that lawyers or firms probably cannot include the required precautionary language.
Another possible solution would be for the legal blog to have an access or start page that asks if the reader is a “close friend (not a mere friend, a “close” friend), a relative (of sufficient relation), or a present or former client.” If the reader checks “yes” and enters the correct password, they can then go on to view the blog. If the reader checks “no,” the blog could direct the reader to either a non-interactive blog page or a blog page entitled:
Attorney Advertising, PLEASE DO NOT TRY TO INTERACT WITH US THROUGH THIS BLOG AS WE DO NOT INTERACT ON OUR LEGAL BLOG WITH THOSE WHO ARE NOT OUR CLOSE FRIENDS, RELATIVES, OR PAST OR PRESENT CLIENTS.
This would help ensure that the legal blog is in compliance with the new rules.
In addition, the lawyer or firm will also want to include the lawyer’s and firm’s name and full contact information, which is now required if the blog is an "advertisement" or a "solicitation," as a precaution just in case the legal blog is found to be an “advertisement” or “solicitation.” But the lawyer or firm will want to be careful in this regard, as listing their contact information may imply that they offer or are willing to provide legal services.
So the lawyer or firm will want to preface their contact information with something that tells readers not to contact the lawyer or firm unless the person is a close friend, relative, or present or past client. (This disclosure requirement will have the added benefit of ensuring that the lawyer and firm get an adequate amount of junk mail and telemarketing calls.)
Regardless of whether the legal blog is an “advertisement” or “solicitation,” the lawyer or firm will have to keep printed copies of each page of the legal blog for at least three years. This may not be that big of an issue for the blogger who writes very infrequently; however, it may be difficult for the more prodigious bloggers. It may also be a problem for law firms whose associates leave the firm, especially if the lawyer maintained their own legal blog.
Reading the rules, it appears that blogs that use “post pages,” which multiple blog entries to appear on one page and provide each individual blog entry to be posted on separate pages, will have to keep printed copies of each individual page and copies of the blog main page. If the blog is syndicated (such as being picked up by Blawg.org
), then under the new rules the lawyer or firm may have to keep a copy of each of those syndicated pages as well. Given that there are now several hundred blog syndication services, this could be quite a task.
With a bit of sarcasm, perhaps it is good that New York is shutting down legal blogs
. Legal blogs have proven very detrimental in providing free and accessible legal commentary and opinions to the public. Perhaps worst of all, legal blogs have let consumers get a feel for what lawyers think about, what they think is important, and that lawyers are real people. This has gone on for much too long. What where those unethical attorneys thinking?