“Blawging” vs. “Flawging”

Remember: just because something is called a “blog” (or “blawg”, as many legal blogs are referred to) doesn’t make it a blog in the proper sense.  Law firm websites are marketing vehicles, and there’s little question they are subject to regulation as commercial speech.  But in the last few years there’s been a blurring of the lines between blogs and websites.

Consider the case of  Richmond, Virginia attorney Horace Hunter, who operated a blog called “This Week in Richmond Criminal Defense.”

The Hunter case 1 is worthy of close scrutiny by any attorney intending to develop business via social media – because Hunter’s blog was determined to be advertising.  The issue was that what Hunter called a “blog” was really a “blog” in name only.  It was far more akin to a law firm’s marketing website.  Rather than commenting on legal developments and engaging with other criminal defense practitioners, Hunter’s “blog” contained little more than a running litany of his successes as a criminal defense lawyer.  In determining that This Week in Richmond Criminal Defense was commercial speech, a divided Virginia Supreme Court focused heavily on its advertising format (the fact that it was part of his website, contained all of his marketing messages and didn’t allow comments) and its promotion of a specific product (the legal services of one Horace Hunter).

None of this should be an issue for the typical legal blog.  Such a blog should contain little, if any, content that could be confused with a direct advertisement for an attorney’s services.  At most, such a blog should offer indirect evidence of an attorney’s competence, writing ability, mental fluidity and advocacy skills.  Or so one would hope.

There was nothing indirect or nuanced about Hunter’s blog.  The factors that drove the Virginia Supreme Court to find that what Hunter called a “blog” was actually “advertising” included:

  1. Most posts predominantly described cases where Hunter got a favorable result for a client;
  2. Most posts mentioned the name of Hunter’s law firm (as well as his own name);
  3. Hunter’s blog was a page on his firm’s commercial website, rather than a stand-alone site;
  4. The blog used the same “frame” as the website, which prominently features the name of Hunter’s firm and a “contact us” form; and
  5. The lack of ability for others to post comments on blog posts. 2

Other than the location of the blog itself (as a subdirectory on a firm’s website vs. a standalone URL), 3 none of these factors should come into play in a proper legal blog.

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Notes:

  1. Hunter v. Virginia State Bar, No. 121472, (Supr. Ct. of VA, Feb. 28, 2013).
  2. If you’re wondering whether the Supreme Court will take this opportunity to address another attorney advertising case, the answer is no – Hunter’s application for a writ of certiorari was denied, so the decision of the Virginia Supreme Court is final.
  3. And quite apart from the ethical discussion, it’s a matter of some debate which location is more effective from the perspective of professional credibility and being found by the search engines.

Social Media + The Law of Legal Marketing

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