Last year, I wrote about the draft California ethics opinion on lawyer blogging – and my many issues with it. Although California is one of the best mandatory bars when it comes to issuing thoughtful, complete opinions that take into account the first amendment concerns that limit advertising regulation, this proposed opinion was too far-reaching.
Fortunately, the revised draft – which takes the form of “FORMAL OPINION INTERIM NO. 12-0006” – has addressed many of my concerns, including:
- The fact that a stand-alone blog refers to the attorney-author by name, includes contact information, and links to the attorney’s website, does not render the blog attorney advertising.
- A “call me” advertising message on a stand-alone blog will make the post in which it appears attorney advertising, but it does not so convert the entire blog.
One thing the opinion continues to miss on, however, is its insistence that a lawyer’s blog on the same domain as the lawyer’s marketing website is attorney advertising. As the opinion puts it:
As part of a larger communication (the professional website) which concerns the firm’s availability for professional employment, the blog will be subject to the same requirements and restrictions as the website.
I don’t believe this is right as a general rule; the case law on mixed-content speech would indicate the opposite result. A fact-specific inquiry would be needed to determine whether a given on-domain blog met the test for commercial speech.
That said, in my view legal blogs are more authoritative and have more opportunity to develop a “voice” when they live somewhere other than a staid old law firm website.[ref]Even if SEO gurus debate which is better from a search perspective.[/ref] If lawyers need an ethics-based excuse to move to that structure, so much the better.