Lawyers who use evolving social media can put themselves at risk, as those who enforce rules drafted long before social media strain to interpret them in situations that were never contemplated, and often against technological and social backdrops that they do not understand.
Recently the Virginia Bar charged a Richmond criminal defense lawyer with misconduct. His violation? Blogging about cases he worked on.
The Bar contends that since one purpose of the blog is to market the firm and attract business, any discussion of the lawyer’s cases is advertising and must include language that will not mislead the reader as to the nature of the lawyer’s success.
The lawyer is challenging the Bar’s position, asserting that his blog is news and commentary and that the Bar’s attempt to require that he add a disclaimer is a violation of his First Amendment rights. Some commentators agree and question whether the Bar is overreaching in its attempt to regulate online speech in social media.
Some caution that the Bar’s position, followed to its logical conclusion, will require Virginia attorneys to include a disclaimer on every blog post, every comment on other blogs, and every other instance of user-generated content. Surely this is not what the rules that govern attorneys’ advertising envisioned.
We believe that the Virginia approach is particularly troubling as it can affect the ability of knowledgeable professionals to share their thoughts and lessons learned, and even to opine on the state of the law — something that has always been viewed as protected under the 1st Amendment and as vital to the advance of the legal profession.
A good example of how Virginia Bar Counsel’s position could slip us all down a very slippery slope: Heretofore, interviews of legal luminaries and of those who have achieved breakthroughs, have been welcomed, be they live, recorded or in print.
A good example: This week, the National Law Journal profiled Manatt, Phelps & Phillips’ successful defense of the former head of St. Vincent’s Medical Program.
Will that interview provide Manatt, Phelps & Phillips’ Kenneth Julian with publicity that will likely help him expand his client base? Undoubtedly. Will it also perhaps lead to insightful comments for consideration by members of the defense bar, by regulators, by academics and by legislators? Absolutely – and therefore it should be encouraged. So should blog posts by attorneys.