I know what you’re thinking. “A blog post about blogs? Wow, Five Minute Law has really jumped the shark.”

But if you’re a lawyer who blogs, a lawyer thinking about blogging, or just someone who reads lawyer blogs, I think you’ll find these ethics tips worthwhile. And so “meta.”

If you also want practical tips on lawyer blogging, check out my UT Law CLE webcast with legal marketing expert Stacey E. Burke, Lawyer Blogging: Ethical Issues and Practical Tips.

These tips focus on Texas ethics rules, because that’s where I practice, but other states have similar ethics rules, so read on, non-Texas lawyers.

Ethics Tip #1: Don’t imply an attorney-client relationship

There are two things you don’t want your blog post to do: form an attorney-client relationship or provide legal advice.

Forming an attorney-client relationship requires that the client communicate an intent that the lawyer provide legal services and that the lawyer consent to do so. The grey area is that the lawyer’s consent can be express or implied. Implied consent happens when the lawyer knows or reasonably should know that the client is reasonably relying on the lawyer to provide the services.

Screen Shot 2019-06-09 at 10.16.36 AM.png

It is unlikely that a person would form an attorney-client relationship by reading a lawyer’s blog post. No one reading a blog post would reasonably think “that lawyer just agreed to provide me with legal services.”

But sometimes people are unreasonable. So be careful not to write anything that implies you are agreeing to provide the reader with legal services. And if you want to be extra cautious, include a disclaimer. On my YouTube channel, for example, I say “Zach Wolfe is not your lawyer (unless you have signed an engagement agreement with his firm).”

The danger of an inadvertent attorney-client relationship is greater in the comments section. Imagine a reader comments, “thanks for the helpful post about non-competes” and then asks if you think his non-compete is enforceable. (Something like this has happened to me.) Don’t ignore the comment, but make sure your response does not imply that you have agreed to be that guy’s lawyer.

The second thing to avoid is related, but thornier: legal advice. It’s related because if the person reading your blog post is not your client, then generally you can’t be held responsible for giving that person bad legal advice. It’s thornier because the whole point of many blog posts is to give guidance based on your expertise. Of course it’s legal advice, in a sense.

So there is no perfect solution to this problem, but it is a good practice to include a disclaimer. The best disclaimer I’ve seen was on a Twitter profile: “Expressly incorporates all disclaimers of all Twitter lawyers everywhere.”

But seriously, a disclaimer can clarify that your expert analysis is not legal advice for anyone’s specific situation. Again, that should be obvious, but it doesn’t hurt to say it.

Ethics Tip #2: Be aware of potential issue conflicts 

You know you have arrived as a law blogger when opposing counsel cites a statement from your blog post against you in the courtroom. That is the greatest compliment.

But this points out a risk that makes lawyers nervous about expressing opinions on legal issues: issue conflicts. There is always the risk that an opinion in your blog post could conflict with the position of your client in a present or future case. The situation is analogous to “issue conflicts” that can arise when a lawyer advocates for conflicting positions in different litigations.

Considering this danger of issue conflicts, law bloggers have essentially three choices:

  1. Never express an opinion on a legal issue; it could be cited against you.
  2. Say whatever you want; it’s just your personal opinion.
  3. Express educated opinions about legal issues in your practice area, but be careful how you do it.

Choice 1 strikes me as overly cautious. If you’re that risk averse, then blogging probably isn’t for you in the first place. And if you are blogging, one of the best ways to develop a reputation as a “thought leader” in your practice area is to express opinions. You’re a blogger, not a reporter.

But Choice 2 goes too far the other way. I respect the attitude of saying whatever the heck you think, but if you want to get and keep clients, you should at least consider how your opinions could impact clients and potential clients.

The prudential considerations are obvious. Your client probably won’t be happy if you express an opinion directly adverse to the client’s position in a pending lawsuit. In some cases, the issue conflict might even present an ethical issue.

The rules on issue conflicts are fuzzy. Here is comment 24 to Model Rule 1.7 on conflicts of interest:

Screen Shot 2019-06-09 at 10.10.41 AM.png

Applying this to law blogs, we essentially get the following rule: a lawyer taking an inconsistent position in a blog post is generally not a conflict of interest, except in the rare case where it would materially limit the lawyer’s effectiveness in representing the client.

So it depends. Let’s take three different opinions as examples:

  1. Texas should only allow non-competes in the sale of a business.
  2. Under Texas law, the employer has the burden to prove that a non-compete is reasonable.
  3. The Texas Citizens Participation Act (TCPA) applies to a claim that an employee misappropriated trade secrets.

These are different types of opinions. No. 1 is a personal opinion about what the law should be. No. 2 is a plain-vanilla statement about what the law is. No. 3 is somewhere in between.

I doubt that expressing a personal opinion about what the law should be would ever violate an ethical duty to a client, especially when the First Amendment is factored in. If you’re prosecuting a drug offense and the defense attorney cites your public statement that marijuana should be legalized, the response is easy: that was just my personal opinion. It’s a free country.

But exercising your freedom of speech could present a practical problem. If your practice is defending medical malpractice claims, your clients probably won’t be too excited if you publish a blog post opining that caps on pain and suffering damages in med mal cases should be abolished.

The second kind of statement—simply stating what the law is on a basic issue—is also unlikely to create an ethical issue. That is, unless you take a contrary position in court. Let’s say I write a blog post saying the statute of limitations for a certain claim is four years, and then in court I say it’s two years. That kind of stark conflict is going to hurt my credibility.

The solution to this problem is fairly simple: be accurate in your statements about what the law is, and don’t take unfounded positions in court.

Opinion 3 is a harder case. When you express an opinion about an unsettled question that is troubling the courts, you could say it’s just your personal opinion. And judges should understand the difference between your personal opinion on a difficult legal issue and your role as an advocate for your client.

But the reality is that many judges are more formalistic in their thinking. If the judge thinks there is only one “right” answer to the legal issue, your conflicting statements about that issue could weaken your position in the eyes of the court. One could argue that “materially limits” your effectiveness in the lawsuit.

Assuming your opinion could hurt your client—even if it shouldn’t—do you violate an ethical duty to your client if you express an opinion on an unsettled legal issue that goes against your client’s position? Generally, I say no.

But that’s just my opinion, man.

Ethics Tip #3: Don’t say you “specialize”

After that difficult issue, let’s go to a simple rule.

Texas Rule of Professional Conduct 7.04 generally prohibits lawyers from saying they “specialize” in a certain area of law. There are exceptions, most notably if you are certified by the Texas Board of Legal Specialization. Unless you fit one of the exceptions, you should not say that you “specialize” or that you are a “specialist.”

Screen Shot 2019-06-09 at 10.18.37 AM.png

Texas lawyers break this rule more often than you might think. If I see a Texas lawyer say in a blog post that he “specializes” in some area of law that I know the Texas Board of Legal Specialization doesn’t recognize as a specialty, I’m going to raise an eyebrow.

The solution to this problem is also simple. Just don’t use the word “specialize.” Say that your practice “focuses” on a certain area of law, and you should be fine.

Does this put form over substance? Sure, but the Texas State Bar seems to be comfortable drawing the line here.

Ethics Tip #4: Remember that a client’s “confidential information” includes non-confidential information

This may be the most counter-intuitive tip.

Suppose you represent a client in a bitter business dispute that goes all the way through trial and appeal. There’s a transcript of the trial testimony on file with the trial court, plus an appellate court opinion detailing the sordid facts of the case. So you’re free to write about the facts in a blog post without client permission, right? I mean, it’s “public record.”

Not so fast. Look at Texas Rule of Professional Conduct 1.05(a). “Confidential information” includes both “privileged information” and “unprivileged client information.”

Privileged information is easy to understand. But the definition of “unprivileged client information” is surprising: “all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.”

Screen Shot 2019-06-09 at 10.21.21 AM.png

Read that again. Confidential information includes all unprivileged information:

  • relating to a client or furnished by the client and
  • acquired “during the course of” or “by reason of” representation of the client.

This is an extraordinarily broad definition. It doesn’t matter whether the information is publicly available. If the information “relates” to the client and you obtained it during the course of the representation, it’s confidential.

That means, generally, you can’t publish such information in a blog post. Rule 1.05(b) says a lawyer may not “reveal” confidential information or “use” confidential information to the client’s disadvantage.

There are, of course, exceptions, e.g., when “the client consents after consultation.” See Rule 1.05(b) and (c). But the bottom line is that in most cases if you want to say anything about a client’s case in a blog post, you’re going to have to get the client’s informed consent.

Screen Shot 2019-06-09 at 10.22.03 AM.png

Can this be right? The press is free to write an article discussing all the facts of a case that are available in the public record. But if I represented one of the parties to the case, you’re telling me I can’t blog about the facts, even when I’m portraying my client in a positive light.

Here’s a possible solution: You could make a case that you’re not violating client confidentiality by focusing on the rule’s use of the word “reveal.” Implicit in the word reveal is the idea that you are communicating something not already known.

That’s the textualist case for allowing lawyers to blog about the facts of their cases. And there’s a non-textualist argument as well: surely, despite the literal language of the rule, a common-sense interpretation would allow a lawyer to write a blog post that discusses facts that have already become public, provided the discussion doesn’t disadvantage the client.

Maybe, but don’t expect help from the American Bar Association. ABA Formal Opinion 480 on lawyer blogging says the rule means what it says: lawyers cannot blog about “unprivileged confidential information” without permission, even if the information is not really confidential.

Unless an exception applies, the ABA says “a lawyer is prohibited from commenting publicly about any information related to a representation.” And it doesn’t matter if the information is in the public record: “information about a client’s representation contained in a court’s order, for example, although contained in a public document or record, is not exempt from the lawyer’s duty of confidentiality.”

Screen Shot 2019-06-09 at 10.00.14 AM.png

There’s one obvious solution: just get client consent. But it can be awkward to contact a client or former client every time you want to include a little war story in your next blog post.

There’s an easier way to avoid disclosing “unprivileged confidential information.” Just don’t name names. When you describe the facts of a case you’ve handled, don’t name the parties. Just describe the situation generically, or as a hypothetical.

This will sometimes solve the problem, but be careful. As the ABA opinion points out, if your description is specific enough that the reader can figure out who you’re talking about, you may still be violating the confidentiality rule. “A violation is not avoided by describing public commentary as a ‘hypothetical,’” the opinion says, “if there is a reasonable likelihood that a third party may ascertain the identity or situation of the client from the facts set forth in the hypothetical.”

And hypotheticals can sound like real cases, especially when you handle the same type of case over and over. When I describe a hypothetical departing employee lawsuit, I sometimes wonder if a former client might think I’m talking about him, only because the fact patterns tend to be so similar.

Here again, a disclaimer may be helpful. On my LinkedIn profile, for example, I say: “Hypotheticals are based on my general experience and reading, not particular actual cases.”

Ethics Tip #5: File your blog post if it contains “advertising”

Texas lawyers must file any advertisement in the public media with the Advertising Review Committee of the State Bar. See Rule 7.07(a). So lawyer bloggers have two options: put as much advertising as you want in your blog post and file it, or avoid saying anything in your blog post that will turn it into advertising.

Screen Shot 2019-06-09 at 10.00.42 AM.png

Simultaneous filing with the State Bar is a pain (and there is a fee), so most lawyers will opt for the latter. But when is a blog post considered advertising?

The Texas ethics rules don’t expressly define “advertisement” or “advertising.” But the State Bar has provided guidance in Interpretive Comment 17: “Blogs or status updates considered to be educational or informational in nature are not required to be filed.”

So if you’re trying to avoid making your blog post an advertisement, “educational or informational” is your mantra. To avoid an ethical issue, you should aim to educate and inform your audience, not to brag about yourself. And this usually makes for a better post anyway.

But even when you’re trying to educate and inform, it’s easy to stray into content that could be considered advertising.

Here are three things likely to turn a lawyer’s “educational or informational” blog post into advertising:

  1. Promoting good results obtained for a client
  2. Touting the lawyer’s experience or qualifications
  3. The “call to action”

Trouble is, these are natural things to do in a blog post. A good result you recently obtained for a client is a classic blog post topic. Talking about your experience and qualifications is also natural. And many marketing experts say your content should conclude with a “call to action,” e.g. “if you’re facing a difficult divorce, call me now at the number below.”

The first two things that can make your blog post an advertisement are matters of degree. If you write about a result obtained for a client, do it in a way that is educational, without expressly using it to promote yourself. Similarly, you can convey information about your experience and qualifications in a subtle way. In both cases, the key concept is “show, don’t tell.” Show the readers that you understand a particular area of law.

The call to action is different. In my opinion, any post that includes a call to action is crossing the border into Advertising-Land. So you’ve got two choices. Either don’t include the call to action, or include it and just deal with the hassle of filing your blog post with the State Bar.

There’s one more thing that is likely to make your blog post an advertisement: comparing yourself to other lawyers. That brings me to the next tip.

Ethics Tip #6: Don’t compare yourself to other lawyers

This is another fairly simple one. Rule 7.02(a)(4) of the Texas Disciplinary Rules provides that a lawyer may not compare the lawyer’s services with other lawyers’ services, “unless the comparison can be substantiated by reference to verifiable, objective data.”

Screen Shot 2019-06-09 at 10.01.29 AM.png

It’s a rare comparison that can be backed up with verifiable, objective data. So, if you can document that “I’ve tried more mesothelioma cases to verdict in Jefferson County than any other practicing lawyer,” then have at it. If you know for a fact that “I’m one of only nine Texas lawyers board certified in both Real Estate Law and Civil Trial Law,” then I suppose you can say that.

But just about any opinion comparing yourself to another lawyer is going to be off limits. By definition, if it’s an opinion it probably cannot be proven with “verifiable, objective data.”

Comment 5 to Rule 7.02 gives some examples of unsubstantiated opinions: “we are the toughest lawyers in town,” “we will get money for you when other lawyers can’t,” or “we are the best law firm in Texas if you want a large recovery.”

Never mind if you see lawyers making statements like this all the time. Don’t do it in your blog post. In addition to violating Rule 7.02, it also risks turning your blog post into an advertisement, as discussed above.

Plus, who wants to read a blog post where a lawyer just boasts and compares himself to other lawyers? That’s almost as bad as a blog post about blogging.

__________________________________

IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who focuses—he didn’t say “specialize”—on non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. He expressly incorporates herein all disclaimers of all law blogs everywhere.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

 

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s