Thinking about starting a legal blog, but concerned about the Rules of Professional Conduct? Here are two key points that may ease your mind:
The Attorney Advertising Rules Likely Don’t Apply to Your Blog. As discussed in the section on the commercial speech doctrine, it doesn’t matter even if your state bar has broad rules purportedly applying to all “communications” by lawyers (I’m looking at you, California). Regardless of the wording chosen, these rules are fundamentally constrained by the First Amendment. And under the First Amendment, advertising rules can only apply to commercial speech. What’s “commercial speech?” It’s speech that has the primary purpose of proposing a commercial transaction. In other words, advertising. So unless you are using your blog to advertise your services, the RPCs relating to advertising do not apply.
The Fact that You Publicize Your Practice via Blogging Does Not Make it “Advertising.” It’s useful to think of legal blogging as being similar to writing articles for legal publications. While there may be an underlying business development motive, such writing is not something that would be considered “commercial speech” subject to the attorney advertising sections of the Rules of Professional Conduct. Why? Because – as discussed in the section on communication that has mixed commercial and editorial purposes, such speech will only be deemed “commercial” if 1) it is contained in an advertising format; 2) it involves references to a specific product; and 3) the speaker has an underlying economic motive. Most blogs don’t come close to meeting this test. What’s more, even if all three tests are met, a communication still won’t be deemed commercial speech if the editorial and commercial content are “inextricably intertwined.” It’s hard to imagine a way that blog posts exploring news items, developments in an area of law or thoughts on the practice of law could run afoul of this test.
Of course, just because something is called a “blog” doesn’t mean it gets a free pass on being considered advertising. The line between marketing websites and blogs can be a fuzzy one. And there are other considerations to keep in mind as well: