Beyond Minimum Continuing Legal Education

I read a great article earlier in the week from Attorney at Work on ‘sharpening the saw.’ I would like to thank Wendy Werner for writing about something that has been our goal here: going beyond minimum continuing legal education. ‘Cast Your Gaze Beyond Meeting Annual CLE Requirements’ reads one of the main captions of the article – my sentiments exactly!

The timing is especially poignant with the recent passing of the 2.1.12 MCLE Reporting deadline in California. Attorneys in California have roughly 1,095 days to complete their required 25 units – and many seem to wait until the last second to begin taking courses.

This is not what CLE was intended for.  Due to workload, many attorneys procrastinate too long to truly concentrate on using CLE to develop or sharpen their legal knowledge and skills. However, with society and the practice of law experiencing such rapid change, CLE seems like the perfect vehicle to sharpen your skills and stay current with the changing times.

Online education makes it easy to use CLE as a learning tool.  We are constantly updating our course list with practical and informative courses.  Our online educational system also allows attorneys take courses from anywhere in the world at any time of the day. We have American attorneys in China, England, Singapore, Israel, Russia, and from across the world who use our online CLE service to fulfill their MCLE compliance.

Whether you live in the United States or abroad, if you need to fine tune your legal writing we have just added an excellent new course from Randall Christison –  Moving the Judge from Drudgery to Persuasion.

To Sue the Online Reviewer?

“It created a story where there was none: Now it will show up in search, now it will attract attention. … It’s snowballing now, and it didn’t have to.”[1] – Jay Pinkert

Here’s the question of today: what do you do when your law firm gets a negative online review?

  • a. Ignore it.
  • b. Sue the anonymous blogger.
  • c. Comment on the negative post
  • d. Never use a computer again.

After thinking about the question and asking for feedback from my peers, we have decided that (c) is the best answer. The problem with suing the anonymous blogger is that you make a story where there would otherwise be none.

A Dallas law firm recently faced the same dilemma. An anonymous blogger had left negative comments about the firm. Here is what ‘Ben’ wrote:

After doing a little investigation the firm found out that the comments originated from Oregon. Since the Texas firm had never represented anyone from Oregon they deduced that the anonymous blogger was not a former client.

The firm then turned to Google to remove the comment … but by then it was too late. Google is like Hotel California – your comments can never leave. Once Google’s search engine ‘picks you up’ those negative results will still continue to turn up in searches – just ask Rick Santorum.  Since the Texas law firm relied on Internet traffic for a large portion of its business, it decided it had no alternative but to sue the anonymous blogger.

However, I read about this story on the law technology news – an outlet for law/technology geeks like myself. By filing a lawsuit, this firm had taken an issue would have gone relatively unnoticed and greatly magnified it.

Here, instead of turning to litigation, the better course of action might have been to write a follow up post to the review and then let the situation die down.  Once your firm picks up some more positive reviews, the one negative comment will be overshadowed.  You could also seek further facts about why the consumer left the negative review or you could even get creative – offer ‘Ben’ further legal representation at no cost since he was not previously satisfied.  That might make the situation better.

I think we’ve come to the point now when most of us know about online reviews – and the people that write them.[2]  And if a person doesn’t know the difference between an online rant and an intelligible review, then maybe you don’t want to represent that person anyway.

In the age of Avvo.com some attorneys and firms have become obsessed with managing and defending their online reputation. And there’s nothing wrong with that – you should actively monitor what’s being said about you online (Google alerts are a good start).

But when you or your firm get attacked online and it’s time to respond, try to use common sense instead of turning into a lawyer and suing the reviewer. Is the $50,000 really going to make you whole again? The damage has already been done – and it’s probably worse than $50K … and only getting worse the more people hear about the story.

For a link to the complaint, click here.


[1] Dallas Firm Sues ‘Doe’ Defendant Over Online Review

http://bit.ly/y8Ntro

[2] Slightly unrelated to the law, but an online of a local hiking trail comes to mind. The online reviewer gave the local San Diego trail one star because it didn’t compare to Yosemite. Well, very few trails do and I can’t get in my car and drive 8 hours to the Sierra Nevada Mountains!

The MCLE Reporting Deadline in California is February 1

If you are a California attorney and your MCLE deadline is in 2012 ask yourself two questions.  Do you want to look like the attorney on the left?  Or would you rather look like the attorney on the right?

Well, if your last name begins with H-M and you are a California attorney your MCLE compliance deadline is rapidly approaching. You have about 4 weeks left until the California CLE reporting deadline on February 1, 2012.

Of course we can help you with all your MCLE needs if you have questions about your compliance or you need CLE courses to fulfill your CLE compliance. The last thing that we would want is for you to get fined or have your license suspended because you did not meet your MCLE requirement with the State Bar of California.

For further information about MCLE in California please click the links below:

Voir Dire Is a lot LIke American Idol?!?

Guest post by David Cannon, Ph.D.Bryan Edelman, Ph.D

Remember the beginning of American Idol every year where countless individuals brag about their ability to sing, only to reveal that they have no singing talent whatsoever?  I’m confident that some of these individuals know that they can’t sing, but we Americans will sometimes do almost anything to get on television.  However, some of these contestants really seem shocked to learn that singing will never be their thing – ever!  They stand in shock.  They cry.  They proclaim that the judges will be sorry when they become huge singing stars.  What exactly is it with these people?  How did they get to this point in life with so little awareness of their actual abilities?  Don’t they have a clue?

Human nature is an amazing thing, and sometimes we blind ourselves to our true abilities.  If there is one thing we will always do, it is protect our self-esteem.  We all want to look good in front others.  Almost everyone feels that he or she is a good, reasonable person.  We want to see ourselves that way, and we desperately want others to see us that way.  We regularly see this in every jury selection.  Here, members of the community gather in a formal and unfamiliar environment.  They are asked whether they can be fair and impartial in order to meet their civic duties.  These questions guide and lead members of the venire to say “yes.”  Once again, we want to seem fair and impartial, especially in front of an authority figure (the judge) and a room full of individuals we don’t know.  Some prospective jurors will respond “yes,” even though we know they can’t be fair under any circumstance in our case.  This is the equivalent of one of those early contestants on American Idol bragging about her singing abilities, only to croak out a horrible rendition of a Whitney Houston song.

I’ve seen many, many instances.  One recent instance that stands out is a product liability case where a young man was gravely injured.  His injuries were so severe that one could not help but feel for him.  Because this happened in a relatively small town, the judge did not automatically excuse members of the venire who knew the plaintiff or his family.  One eager individual in the jury pool, whom we will call Sarah, walked in and openly acknowledged the plaintiff and his mother.  Sarah greeted them with a “hello” as she walked into the courtroom.  During questioning by plaintiff’s attorney, Sarah downplayed any involvement with the family and was adamant that she could be fair because “she did not know both sides yet.”  She stressed that she would be “open” until she heard all of the “facts.”  She said she had not yet made up her mind.  Sound familiar?

Now, it was our turn to speak with Sarah.  We had very few peremptory strikes left, so we wanted to preserve them as best as we could.  Had we just moved into questioning about her ability to be fair and impartial, we would have gotten nowhere.  Instead, we opened her up.  I told my client just to get her to talk.  Ask her broad questions about how she knows the plaintiff’s family.  When does she socialize with them?  What has she discussed with them about the case?  My client interviewed her beautifully, in a manner that I call “talk show style.”  It turned out that Sarah was good friends with the plaintiff’s mother.  Sarah had even been at the hospital on the day of the injury.  She had spoken at length with the plaintiff’s family about the case, and she socialized often with the family.  She ended her questioning by emphasizing she could be completely fair to the defense.  Sarah wanted on the jury, badly.

Was this a case of no insight, of someone just wanting to be viewed as a fair and reasonable person, or did she want to be on the jury to take care of the plaintiff?  In the end, it really didn’t matter.  Everyone in the courtroom saw what we see at home when we watch an American Idol contestant painfully butcher a song.  Sarah was clearly wrong about her ability to be fair and impartial, and everyone in that courtroom knew it.  Sarah was dismissed for cause.

Sometimes jurors may have a secondary gain to serve as a juror, but more often than that, sometimes they just can’t really see that they are not a good fit for a particular case.  Rather than closing these prospective jurors up with close-ended questions like, “can you be fair,” open them up with open-ended questions.  Get them talking.  Think “Oprah,” by asking questions in a talk show format that make the prospective juror talk.  Start broadly, and then get more specific.  This way, whether that individual sees it or not, his inability to be fair will be crystal clear when you move for cause.

Just like American Idol, sometimes song choice is key.  Just because a juror can’t be fair in one case does not mean she couldn’t be a fair and impartial juror in another case.

About the authors: Dr. Edelman earned a Ph.D. in social psychology from the University of Nevada, Reno and a LL.M. in International Law from the University of Kent in the United Kingdom. He began working as a trial consultant in 1998. Prior to co-founding Trial Innovations he was a Senior Trial Consultant at the Jury Research Institute.  Over the last 13 years, he has worked on a number of high profile civil and criminal cases across the country and has also testified as an expert witness. Dr. Edelman has served as a presenter at national and international conferences and has published a book on the impact of race and empathy on sentencing in capital cases and articles on the influence of graphic images on perceptions of liability and damages.

Dr. David Cannon is co-founder of Trial Innovations and is based in the Los Angeles area.  Dr. Cannon has been the lead trial consultant in cases across the country, ranging from insurance defense and corporate litigation, to capital cases and white collar crime. Dr. Cannon began consulting and conducting research on the consulting field in 1998.  He has authored articles on voir dire and jury selection in bar journals across the country.  He has also conducted research on attorney voir dire style and its effect on jury verdicts.

If you need further information please view Dr. Cannon and Dr. Edelmans CLE courses on the AttorneyCredits.com website:

Are Bloggers Journalists?

‘Investigative Blogger’ Crystal Cox was ordered to pay $2.5 million this week for defaming the owner of Oregon investment firm Obsidian Financial. Cox runs various law related blogs like industrywhistleblower.com, judicialhellhole.com, and obsidianfinancesucks.com.

The distinction between “journalist” and “blogger” made a very large difference in the case. Because U.S. District Court Judge Marco A. Hernandez found that Cox was not a journalist she was not entitled to the protections of the Oregon media shield statute. The Oregon media law reads:

No person connected with, employed by or engaged in any medium of communication to the public shall be required by … a judicial officer … to disclose, by subpoena or otherwise … [t]he source of any published or unpublished information obtained by the person in the course of gathering, receiving or processing information for any medium of communication to the public[.]

Judge Hernandez’s finding that Cox was not a journalist mainly hinged on the fact that Cox was not employed by an official media establishment and failed to produce evidence of her status as a journalist. The judge found that there was no evidence of:

  1. Any education in journalism;
  2. Any credentials or proof of any affiliation with any recognized news entity;
  3. Proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest;
  4. Keeping notes of conversations and interviews conducted;
  5. Mutual understanding or agreement of confidentiality between the defendant and his/her sources;
  6. Creation of an independent product rather than assembling writings and postings of others; or
  7. Contacting “the other side” to get both sides of a story.

However, bloggers don’t be alarmed. There are two main points that seem to limit the application of this case.

First, this case was decided on the Oregon media shield statute. This may not be the law in your state. For example, some commentators feel that the outcome would not have been the same in Washington State.[1] Also, blogs are not defined in Oregon’s laws as “media.” This may not be the case in your state.

Second, it appears as though Cox does not have the cleanest of hands. According to Forbes staff writer Kashmir Hill many of Cox’s blog posts were ‘unhinged.’ Further, according to the Forbes article Cox allegedly contacted Obsidian Financial earlier in 2011 and offered to provide them with “reputation services” for $2500 a month.

I will leave it to Ms. Kasmir Hill of Forbes for the lesson in all of this:[2]

Yes, there are bloggers who are journalists. But just because you have a blog doesn’t mean that what you do is journalism.

Click here to read the PDF of the case.


[1] See: Unlike Oregon, Bloggers Are Journalists in Washington State, Do Qualify for Legal Protections

http://blogs.seattleweekly.com/dailyweekly/2011/12/unlike_oregon_bloggers_are_jou.php

[2] Why An Investment Firm Was Awarded $2.5 Million After Being Defamed By Blogger

http://www.forbes.com/sites/kashmirhill/2011/12/07/investment-firm-awarded-2-5-million-after-being-defamed-by-blogger/

Is tweeting grounds to overturn a murder conviction?

Could a few tweets overturn a murder conviction?

 “He’s paying more attention to his Twittering than the evidence”

The Arkansas Supreme Court will be soon  be forced to answer this question. Apparently, a juror in a capital murder case was tweeting from the jury box and the jury room even though the judge admonished the juror not to tweet anything about the case.[1] While the juror didn’t tweet about the substance of the case the juror did tweet that he was reluctant to deal with the death penalty and also tweeted “It’s over” from the deliberation room – before the jury announced it’s verdict.

“After even being brought in and questioned about it, he went back and twittered during the sentencing deliberations” [2]

This is a subject I have been paying close attention now for a few years. Technology has rapidly been wreaking havoc into the jury box and how it threatens the sanctity of our legal system.

While California Governor Jerry Brown may have recently signed a law prohibiting juror tweeting and other social media activity, jury instructions simply don’t go far enough.  Jurors either need to face severe monetary or criminal sanctions OR they need their smatphones and electronic devices taken away from them when they enter the courtroom. Some have even proposed digital sequestration.[3]

The problem will only continue to get worse.  We have already had civil judgments vacated due to juror’s social networking activity. Now we have people’s lives at stake.  Criminal defendants have a Constitutional right to a trial with an impartial jury.[4]  It is the bedrock of our criminal justice system.

We will soon find out if a few 140 character tweets are enough to violate a criminal defendants 6th Amendment rights and merit that a murder conviction be overturned. Jurors need to face severe penalties for undermining our justice system before it erodes even further.

The following is from a juror whose tweet vacated a $12.6 million civil verdict:


[1] Another juror was also caught sleeping. This story was first reported by the Associated Press and the Arkansas News Bureau. See Lawyer: Tweeting, sleeping by jurors cause to overturn Murder Conviction.

[4] The Sixth Amendment guarantees an impartial jury for all criminal defendants.

ESI & Social Networks

With the staggering amount of electronic content  in social networks such as Facebook, Twitter, LinkedIn and YouTube it’s no surprise that increasingly more attorneys are attempting to introduce this ESI into evidence at trial.

“It is very easy to create fake social media pages and have your social media account hacked. Fraudulent access to social media pages occurs more often then some may think.”[1]

However, can this evidence be relied on at trial and will the judge even let it in?  Like many legal answers – it depends.  It depends primarily on the relevance of the ESI and what the evidence is being used for.

Many recent court decisions regarding electronic evidence is the concept that emails, text messages and social media data are subject to the same requirements for authenticity as traditional paper documents.[2] The question becomes what is the most appropriate way to authenticate ESI printed from a social networking website?

In a recent Maryland case the prosecution failed to lay a proper foundation for MySpace pages that they tried to introduce into evidence.  The defandant argued that the State failed to lay a proper foundation for the MySpace pages:[3]

“The potential for abuse and manipulation of a social networking site… leads to our conclusion that a printout of an image from such a site requires a greater degree of authentication….”

According to the Maryland court the following would have helped to authenticate the evidence:

  • Testimony from the person who created the post
  • Searching the hard drive and internet browsing history of the computer used to create the post to verify when and from where the post was created
  • Obtaining information directly from the social media site itself to show who created a page or post, and when and from where particular posts were sent.

In another case from Connecticut a court would not allow Facebook messages because the authorship of the messages could not be authenticated.[4] The bottom line is that the world was  vastly different place than it was ten years ago.  The pervasivnes of computers, laptops, smartphones and other mobile devices combined with the rise of Web 2.0 means that our lives have changed greatly – and so has the way attorneys find and utilize evidence.

When presenting this new ESI at trial, it’s important to have a game plan ahead of time.  What is the ESI that will be used?  How will it be used?  And how will you get it into evidence at trial.

In the lack of clear guidance in your state, it’s wise to know some of the principle cases from around the country. And it’s also wise to get advice from those who know. If you need further assistance with social media and Facebook evidence, we have an excellent course taught by trial attorney Dan Gilleon entitled Finding and Obtaining Electronic & Social Media Evidence at Trial.

Further Resources:

Authentication of Social Media Evidence

eDiscovery by Geeks for Attorneys

Maryland’s Social Media Evidence Authentication Decision Provides Much Needed Guidance


[1] Maryland’s Social Media Evidence Authentication Decision Provides Much Needed Guidance

http://www.shearsocialmedia.com/2011/05/marylands-social-media-evidence.html

[2] Authentication of Social Media Evidence

http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202531978733&Authentication_of_Social_Media_Evidence&slreturn=1

[3] Griffin v. State, 419 Md. 343 (2011). The court concluded that even though the social media profile contained a picture of the defendant and his girlfriend and her correct birth date and location, this information was insufficient to authenticate the printout.

[4] State v. Eleck, 23 A.3d 818 (Conn. App. 2011). In refusing to authenticate social media message printouts, the court noted the “general lack of security of the [social network] medium” raises evidentiary issues and makes it incumbent on the defendant to advance other foundational proof to authenticate the proffered messages.

Time to Add a Disclaimer to Your Blog?

As I blogged about previously, earlier in the month the Virginia Bar charged attorney Richmond Attorney Horace Hunter with misconduct due to his Richmond Criminal Defense News blog (PDF here).[1]

The attorney in question has now been found guilty of violating the Virginia ethics rules regarding advertising. Don’t fear for Hunter, his penalty was a public admonition and he was told take corrective action within 30 days – public admonition is the least sever penalty available.

Specifically, the Virginia Disciplinary Committee found that Hunter violated an ethical rule that mandated an advertising disclaimer on his blog when he wrote about his own legal cases.  Under Virginia Ethics Rule 7.2 Hunter must ethically post a disclaimer on the homepage of his blog.[2]  Since Hunter didn’t have the disclaimer in his blog posts noting his firm’s wins to be advertising, the Committee found his conduct to be unethical.

The Committee further found that Horace Frazier Hunter violated rules by disclosing detrimental or embarrassing information about clients without their consent.  Apparently, at least two former clients said they did not want their cases posted on Hunter’s blog after learning that he had written about their cases.

Hunter had argued that his blog consisted of news and commentary and refused to post the disclaimer as a violation of his First Amendment free speech rights. He claimed that since the information he posted was accurate and disclosed during public trials, that he did not violate any confidences.

“Although I adamantly disagree with the panel’s decision, I do respect it” [3]

The Virginia Disciplinary Committee contends that the disclaimer is aimed at preventing potential clients from being misled – something that could generate mistrust of the justice system or make clients mistrust their lawyers.  The Committee did not see the First Amendment as being involved in the case.

“The First Amendment has no bearing on this violation. … It doesn’t impact journalists, it doesn’t impact bloggers, it doesn’t impact the general public.” – Renu Brennan, Assistant Virginia Bar Counsel [4]

Will this move have the chilling effect that some have proposed? [5]  I doubt it.  Attorneys might, however, want to start including a disclaimer on their blog if they talk about their cases.

Further, it’s always wise to remember to remain ethical in our new Web 2.0 World. Absent a specific rule or guideline, it’s always wise to use common sense.


[2] However, this Rule 7.2 Disclaimer Rule is only to apply, “when listing previous wins in advertising.”  The disclaimer must state that prior results don’t guarantee future success. The issue will be will be whether Hunter’s blog posts are written in a truly journalistic fashion, or are they simply disguised advertising taking the form of blog posts

[3] See: Virginia Bar Rules that Lawyer Violated Advertising Rules with his Blog

[4] See: Virginia Bar Rules that Lawyer Violated Advertising Rules with his Blog

[5] The Washington Post‘s Capital Business Blog originally reported the story and stirred the pot when it cautioned that the action against Hunter could have a chilling effect on blogging in the legal industry. Washington Posts’s Catherine Ho (@WapoCat on Twitter) warned that Virginia lawyers who blog about their cases may suffer  the consequences from their state bar.  Ms. Ho also state that the Hunter case could set precedent for other states bar’s limiting legal blogs.

eDiscovery by Geeks for Attorneys

Electronic Discovery.  These two words have to power to make the hair stand up on just about every attorney’s neck.

Let me tell you a story that was told to me by Dan Libby, a digital evidence expert who is featured on our website.  Dan delivered a great presentation a few years ago on e-discovery and computer forensics for a local law group here in San Diego.  After the presentation, he had an older attorney in the audience come up to him, shake his hand, slap him on the back, and tell him how thankful he was that Dan had given the presentation – because it had cemented his decision to retire from the practice of law!

Yes, e-discovery is the game changer …. and has even sent a few attorneys into an early retirement.  The 2006 Amendments to the Federal Rules of Civil Procedure have ushered in an entirely new era in the practice of law – the Digital Age.  Attorneys must now take proactive steps regarding the discovery of ESI (Electronically Stored Information).

Luckily, we’ve got you covered if you need to brush up on the electronic discovery of Electronically Stored Information.  We have just added three great new CLE courses with Angie Singer the CEO of Reclamere, a company based in Pennsylvania that specializes in Data Security and IT Asset Management.[1]  Angie has quite a bit of experience with these electronic issues, and she breaks the information down in a way that attorneys can understand it.

Here are the three courses that we just added:[2]

E-Discovery vs. Computer Forensics – What’s the Difference?

With the rapid rise of electronic data discovery (EDD), even well prepared and educated attorneys can be confused about the differences between computer forensics and electronic discovery. While e-discovery is required in more instances than computer forensics, attorneys may use one or both services depending on the cause of action and the facts of the case.

In this presentation, Ms. Singer illustrates the differences between e-discovery and forensics to give you a better idea of how these different types of services can be effectively used in your cases. The primary topics addressed include industry terms, the basics, a review of the differences between the two services, common myths, case examples, observations, and resources.  Ms. Singer also diligently explains e-discovery and the EDRM (Electronic Discovery Reference Model), a very helpful model/diagram that visually illustrates the steps involved in e-discovery.

eDiscovery by Geeks for Attorneys

The 2006 Amendments to the Federal Rules of Civil Procedure (FRCP) ushered in the area of e-discovery & ESI and forever changed the landscape of American legal system. Are you ready to practice law in the Digital Age where printers, GPS, and even Nintendo Game Boys now contain valuable electronic evidence?

In this CLE course, Ms. Singer explains why it’s now good practice to have a geek in your corner!  The course focuses on the roles of the attorneys and expert, the big picture of EDD, common myths and avoiding problems. Other areas addressed include case law, statutes, the foundation & life cycle of EDD, preparation, litigation & preservation holds, reasonable anticipation of litigation, sources of ESI, collection & searching, production, native file format, E-Discovery governance, continuous improvement, outsourcing, and commercial products. Case law discussed by Ms. Singer includes Cache La Poudre Feeds, LLC v. Land O’Lakes, Zubulake v. UBS Warburg, Phoenix Four, Inc. v. Strategic Resources Corp., and Jane Doe v. Norwalk Community College.

Security Threats & Trends for Attorneys

From poor password protection to the dangers of social media, Ms. Singer will teach you about some of the top security threats to your client’s confidential data.  Angie will provide you with answers – not just fear – to protect yourself and your clients from these security threats. The ten threats for attorneys that Ms. Singer discusses include social media, excessive user privileges, unpatched machines, autorun exploits, poor password practices, phishing & spear phishing, lost or stolen devices, over-confidence in anti-virus software, unsecured Wi-Fi, and cyber money mule scams.

Other issues addressed include malware, data breach notification laws, clickjacking & keylogging, beachheads, legacy systems, URL shortening websites, the role of privilege in information systems, administrator rights and patching. Ms. Singer also provides numerous practice points on how to overcome each threat.

If you need to brush up on the finer points of electronic discovery, computer security, and computer forensics, these online CLE courses can serve as an excellent resource to your professional development.


[1] Angie Singer has over 20 years of experience with information systems, engineering, project management. Her certifications include CISA (Certified Information Systems Auditor), CIPP (Certified Information Privacy Professional), CISM (Certified Information Security Manager) and CRISC (Certified in Risk and Information Systems Control). Ms. Singer’s specialties include Computer Forensics, e-Discovery Litigation Support, Data Recovery, Data Destruction, Systems Assessments, and Systems Auditing

[2] Although we are an online CLE company, attorneys may take these courses in a variety of formats, including streaming audio and video, in addition to MP3 and video download format for offline use.  We also offer CD and DVD compliance packages in select states that deliver your MCLE compliance package.

Blogging: Advertisement or Journalism?

Advertising has been a vexing problem for the legal profession for years now.  Before legal advertising was deemed legal with the 1977 Supreme Court decision in Bates v. Arizona, the fear was that advertising would erode notions of professionalism. And since advertising become legal for attorneys, we have had to suffer though the late night ‘Larry Parker got me $2.1 million’ commercials.

This tension between professionalism and advertising has followed into the online realms as well.  Chat rooms, websites and Internet Referral Services have all been fertile ground for attorney advertising – and unethical conduct.

Now blogs are at issue … once again.  The questions becomes, how big is the threat?

Attorney Horace Hunter, who maintains the Richmond Criminal Defense News blog has been charged with misconduct by the Virginia State Bar (PDF here). The Washington Post‘s Capital Business blog recently stirred the pot when it cautioned that the action against Hunter could have a chilling effect on blogging in the legal industry.[1]

However, the Washington Post‘s Capitol Business blog could be way off base here. The main issue in the case is whether a blog should be treated as advertising or as news & commentary.

Hunter asserts that the blog is not an advertisement, but rather consists of news and commentary. Since his blog falls into a ‘news and commentary’ category, no disclaimer is required and the blog is protected by the First Amendment.  The Virginia State Bar contends that Hunter’s blog is advertising and as such, under Virginia Ethics Rule 7.2 Hunter must ethically post a disclaimer on his website.  Since Hunter didn’t have the disclaimer in his blog posts noting his firm’s wins, the Bar claims this is unethical.

However, this Rule 7.2 Disclaimer Rule is only to apply, “when listing previous wins in advertising.”  The disclaimer must state that prior results don’t guarantee future success. The issue will be will be whether Hunter’s blog posts are written in a truly journalistic fashion, or are they simply disguised advertising taking the form of blog posts.[2]

The Viriginia State Bar claims may ultimately hold merit. Carolyn Elefant seems to think that Hunter’s blog is a thinly veiled newsfeed of his firm’s triumphs and successes. You can see for yourself by visiting the blog here.

We will have to see what the Virginia Bar decides, the hearing is set for October 18th.  Even if the Bar succeeds, attorneys will merely have to place some small text reading “Attorney Advertising” on the footer of the main blog page – not even at the bottom of each post. This is not a major issue.  Further, as Kevin O’keefe of RLHB points out there is no record of disciplinary action against Virginia attorneys regarding blogging dating back to 1999.

Brief summary of Advertising rules & issues:

  • Lawyers cannot state anything false or misleading
  • Lawyers cannot state they are a specialists, unless so certified by their respective State Bar
  • Lawyers cannot use testimonials in some states with the implication that past performance will dictate future results
  • It’s smart to include a disclaimer on your website that you practice in a certain geographic region to avoid unauthorized practice of law claims
  • Use common sense – if you can’t do it on the T.V. or the radio, you can’t state it in your website, blog, Twitter, or Facebook (remember Rakofsky!)

Further Resources:


[1] Washington Posts’s Catherine Ho (@WapoCat on Twitter) warns that Virginia lawyers who blog about their cases may suffer  the consequences from their state bar.  Ms. Ho also state that the Hunter case could set precedent fo other states bar’s limiting legal blogs.

[2] One thing that I have found in years of tracking these ethics and technologies issues is that each case must be decided on a case-by-case basis. Because each case involves specific electronic conduct by the attorney or firm at issue, it’s tough to make blanket statements on the merits of one case. There are numerous firms – especially P.I. firms – whose blogs are thinly veiled advertisements or direct solicitations. And that may be the case here.