Category Archives: lawyer blogs

California Ethics Opinion addresses ethics issues related to lawyer blogging and advertising and provides guidelines

Hello everyone and welcome to this Ethics Alert which will discuss the recent California Formal Ethics Opinion which addresses ethics issues related to lawyer blogging and advertising and provides guidelines for lawyers who blog.  The Opinion is The State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion No. 2016-196 and the ethics opinion is here: Cal. Formal Opinion No. 2016-196

The opinion reviews the application of advertising rules to attorney blogging and when blogging by an attorney considered a “communication” under the California Bar Rules and the provisions of California Business and Professions Code which regulate attorney advertising.  The California rules prohibit false or deceptive “communications” which confuse, deceive or mislead the public (as do most, if not all Bar rules throughout the U.S.)  This proscription applies to both affirmative statements and/or to omissions necessary to make a statement not misleading.

The opinion discusses U.S. Constitution First Amendment principles, including the fact that lawyer advertising is protected commercial speech, and truthful lawyer advertising cannot be absolutely prohibited; however, it can be subject to reasonable regulation and restrictions.  In addition, communications for publication by lawyers that are primarily informational and educational have long been considered to be core political speech and protected under the First Amendment, and such speech can be restricted only under extraordinary circumstances.

The First Amendment protections apply even if the lawyer also hopes, as a partial motive, to use the informational and educational communications to increase his or her legal business; however, commercial motivation is only one factor to be considered.  The key questions are whether a blog is a message or offer (1) made by or on behalf of a California attorney; (2) concerns the attorney’s availability for professional employment; and; (3) is directed to a former, present or prospective client.  Since all blogs will meet factors 1 and 3, the important question is whether the blog concerns the attorney’s availability for professional employment under question 2.

The opinion discusses Cal. Formal Opinion 2012-186, which analyzes the application of California advertising rules to attorney social media posts, and found that a post which has words of offer or invitation relating to representation is a “communication’; however, if a post is only informational in nature, it is not a communication. The opinion concluded that this same analysis applies to lawyer blogs.

The opinion also discusses Cal. Formal Opinion 2001-155, which found that, even without specific words of invitation or offer, a website that included information such as a detailed listing of services, qualifications, backgrounds, and other attributes of the attorney or law firm, with their distribution to the public, could carry a “clear implication” of availability for employment, and would therefore be a “communication” subject to advertising  regulation. The opinion concluded that the same analysis applies to lawyer blogs.

The opinion states that a listing of all of an attorney’s cases and outcomes, without comment, could be considered informational and not a “communication”; however, a communication with the result of a specific case or cases without providing information related to the facts and/or law giving rise to the result, would be presumed to be false, misleading or deceptive, and could be a prohibited “guarantee, warranty or prediction regarding the result of representation.” The opinion stated that even a numbered listing of “wins” might be misleading without clarification about what is considered a “win.”  The use of disclaimers may (but will not necessarily) overcome a presumption of violation.

Bottom line:  Lawyer blogging has become a very popular and somewhat ubiquitous form of legal communication and is often recommended to lawyers as a business strategy.  This recent California Bar ethics opinion provides solid guidance to lawyers who are blogging or plan to blog to attempt to insure compliance with the Bar rules, regardless of whether the lawyer is in California or another state.  If a lawyer blogs, each blog should primarily informational and educational to potentially avoid the application of Bar advertising rules (like this one).

Be careful out there.

 

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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California interim ethics opinion addresses when lawyer blogging is subject to regulation under Bar Rules

Hello everyone and welcome to this Ethics Alert which will discuss lawyer blogging and the interim opinion of the State Bar of California which addresses the topic of lawyer blogging and when lawyer blogs may be subject to regulation under the California Bar Rules and advertising statute.  The interim ethics opinion is The State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion Interim No. 12-0006 and the opinion is here:  Cal Bar Opinion Interim No. 12-006- lawyer blogging.  The comment period on the interim opinion has expired; however, the opinion has not been finalized.

The interim opinion frames the issue: “Under what circumstances is ‘blogging’ by an attorney a ‘communication’ subject to the requirements and restrictions of the Rules of Professional Conduct and related provisions of the State Bar Act regulating attorney advertising?”

The interim opinion’s digest section states:

  1. Blogging by an attorney may be a communication subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising if the blog expresses the attorney’s availability for professional employment directly through words of invitation or offer to provide legal services, or implicitly through its description of the type and character of legal services offered by the attorney, detailed descriptions of case results, or both. (emphasis supplied)
  1. A blog that is an integrated part of an attorney’s or law firm’s professional website will be a communication subject to the rules and statutes regulating attorney advertising to the same extent as the website of which it is a part.
  1. A stand-alone blog by an attorney, even if discussing legal topics within or outside the authoring attorney’s area of practice, is not a communication subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising unless the blog directly or implicitly expresses the attorney’s availability for professional employment.
  1. A stand-alone blog by an attorney on a non-legal topic is not a communication subject to the rules and statutes regulating attorney advertising, and will not become subject thereto simply because the blog contains a link to the attorney or law firm’s professional website. However, extensive and/or detailed professional identification information announcing the attorney’s availability for professional employment will itself be a communication subject to the rules and statutes.

In the discussion section, the opinion recognizes that “(b)y its nature, blogging raises First Amendment free speech issues. Prohibited for most of the 20th Century, advertising by attorneys was found to be protected commercial speech by the U.S. Supreme Court in Bates v. State Bar of Arizona (1977) 433 U.S. 350 [97 S.Ct. 2691].  Bates provides that truthful attorney advertising cannot be absolutely prohibited, but may be subject to reasonable restrictions.”

The opinion then provides four examples of attorney blogs and analyzes each of the hypothetical blogs regarding the application of the California Bar Rules and the California advertising statute and concludes that:

“A blog by an attorney will not be considered a ‘communication’ subject to rule 1-400 or an “advertisement” subject to Business and Professions Code sections 6157, et seq., unless the blog expresses the attorney’s availability for professional employment directly through words of invitation or offer to provide legal services, or implicitly, for example, through a detailed description of the attorney’s legal practice and successes in such a manner that the attorney’s availability for professional employment is evident.

A blog included on an attorney’s or law firm’s professional website is part of a ‘communication’ subject to the rules regulating attorney advertising to the same extent as the website of which it is a part.

A stand‐alone blog by an attorney on law‐related issues or developments within his or her practice area is not a ‘communication’ subject to the rules regulating attorney advertising unless it invites the reader to contact the attorney regarding the reader’s personal legal case, or otherwise expresses the attorney’s availability for professional employment.

A stand-alone blog on law-related issues maintained by an attorney that is not part of the attorney’s professional website is not ‘communication’ subject to attorney advertising regulations unless the blog indicates the attorney’s availability for professional employment.

A non-legal blog by an attorney is not a ‘communication’ subject to the rules or statutes regulating attorney advertising, even if it includes a hyperlink to the attorney’s professional web page or contains biographical or contact information. However, the biographical or contact information itself may be subject to the rules and statutes.”

The general consensus among the jurisdictions (including Florida) would appear to be that, if the lawyer’s blog is primarily educational and/or informational in nature and not primarily for obtaining employment, it is not subject to advertising regulation (see NYSBA Ethics Op. 967 (6/5/13) here: NYSBA Ethics Op. 967).

This California interim opinion states that: “”(b)logging by an attorney may be a communication subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising if the blog expresses the attorney’s availability for professional employment directly through words of invitation or offer to provide legal services, or implicitly through a description of the attorney’s legal practices and successes in such a manner that the attorney’s availability for professional employment is evident.” (emphasis supplied).  The opinion does not address whether blogs which are primarily for educational and informational purposes are subject to regulation even if it also expresses the attorney’s availability for professional employment.

Bottom line:  Lawyer blogs are subject to state Bar regulations only to the extent that the regulations do not violate the lawyer’s federal constitutional First Amendment free (commercial) speech rights; however, lawyers who blog must research the requirements of their state advertising rules, ethics opinions, and other sources to insure compliance with those state regulations.  To the extent that those rules may violate the lawyer’s First Amendment free (commercial) speech rights, the lawyer could consider a constitutional challenge.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

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California Ethics Opinion reviews advertising restrictions on lawyers when posting and commenting on Facebook and other social media websites

Hello and welcome to this Ethics Alert blog which will discuss the 2012 California Formal Ethics Opinion which addresses a lawyer’s obligations when posting on Facebook and other social media websites.  The opinion is Cal. Formal Op. 2012-186 (12/21/12).  The ethics opinion is here: http://ethics.calbar.ca.gov/Portals/9/documents/Opinions/CAL%202012-186%20%2812-21-12%29.pdf

The California State Bar’s Standing Committee on Professional Responsibility and Conduct issued a formal ethics opinion with guidelines and ethical restrictions on California attorneys when using social media.  The opinion states that Facebook and other social media advertising is subject to the same Bar Rules as traditional forms of advertising and under those rules, false and misleading advertising is prohibited.  The opinion also states that the determination of whether the comment is a communication subject to the California Bar Rules is whether it is a message or offer “concerning the availability for professional employment”. 

The opinion reviewed and analyzed the following hypothetical facts and comments:

“Attorney has a personal profile page on a social media website. Attorney regularly posts comments about both her personal life and professional practice on her personal profile page. Only individuals whom the Attorney has approved to view her personal page may view this content (in Facebook parlance, whom she has “friended”).  Attorney has about 500 approved contacts or “friends,” who are a mix of personal and professional acquaintances, including some persons whom Attorney does not even know.

In the past month, Attorney has posted the following remarks on her profile page:

1.         ‘Case finally over. Unanimous verdict! Celebrating tonight.’

2.         ‘Another great victory in court today! My client is delighted. Who wants to be next?’

3.         ‘Won a million dollar verdict. Tell your friends and check out my website.’

4.         ‘Won another personal injury case. Call me for a free consultation.’

5.         ‘Just published an article on wage and hour breaks. Let me know if you would like a copy.’

The opinion concludes that comments 1 and 5 would not be a communication “concerning the availability for professional employment” subject to the California Bar Rules; however, comments 2, 3, and 4 would be communications subject to the Bar Rules.  The opinion also states, in a footnote, that the conclusions in the opinion are not limited to Facebook and would include Twitter, social media and other websites.

Bottom line:  As I have said many times in the past, state Bar Ethics Opinions are not binding and are intended only to provide guidance to lawyers; however, this opinion gives a good overview of the requirements of the California Bar Rules when a lawyer posts on social media and other websites.  The California Bar Rules state that the advertising rules apply to communications “concerning the availability of employment”.  The analysis and conclusions in this opinion would arguably apply to lawyers in other states which have the same or similar language, for example, Rule 4-7.11(a) of The Florida’s Bar advertising rules state that: (t)he terms “advertising” and “advertisement” as used in (the Florida Bar rules) refer to all forms of communication seeking legal employment, both written and spoken.”

Be careful out there!

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

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Florida Bar’s Standing Committee on Advertising issues proposed advisory opinion which cautions lawyers against using “hidden text” or another firm’s name in a website page “metatag”

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent draft Proposed Advisory Opinion A-12-1 by the Bar’s Standing Committee on Advertising which cautions lawyers on certain search engine optimization (SEO) tactics for websites, including using “hidden text” and using another law firm’s name in a website page “metatag”.  The proposed opinion is at: http://www.floridabar.org/DIVCOM/JN/jnnews01.nsf/8c9f13012b96736985256aa900624829/9300b4f07c0c029785257b39004717f1!OpenDocument

According to the proposed advisory opinion, “(w)ebsites used to promote a lawyer or law firm are subject to the lawyer advertising rules. Rule 4-7.11(a).  Lawyers are prohibited from engaging in ‘deceptive or inherently misleading advertising.’  Rule 4-7.13. Included within the prohibition is any advertisement that ‘implies the existence of a material nonexistent fact.’ Rule 4-7.13(a)(3). The Committee is of the opinion that certain website content and the use of certain internet search engine optimization techniques can be false, deceptive or misleading conduct that is prohibited by Rule 4-7.13. Examples include ‘hidden text’ or ‘meta tags’ that use another lawyer’s or law firm’s name without a proper purpose, a false representation that a law firm has an office in a particular location when the lawyer does not have an office at that location, or representing that a lawyer handles cases in an area of practice that the lawyer or firm does not practice.

“The intent of this opinion is to educate attorneys on the prohibited use of false, deceptive and/or misleading content or techniques in the design and optimization of their websites and to provide some examples. First, it is entirely acceptable to employ website design, content and search engine optimization techniques in law firm websites as a method of marketing legal services and educating the public about a particular law firm, its attorneys, and its practice. In doing so, law firms must take care to comply with the Rules Regulating the Florida Bar in the design, content and optimization of their websites. This advisory opinion is intended to provide some guidance to attorneys in this rapidly changing media.”

“One specific example of false, deceptive and misleading search engine optimization techniques would be the use of ‘hidden text’ that is not visible to the human eye but is visible to search engines. Such ‘hidden text’ would almost always be inherently false and misleading. Major search engines such as Bing and Google discourage the use of hidden text as a form of spam used to ‘artificially inflate search engine ranking,’ consider it a form of deception, and lower the rankings of websites who use hidden text.”

“Another example of a false, deceptive or misleading technique would be the use of another lawyer’s name or the name of another law firm in a firm’s website when the firm has no legitimate connection, relationship or history with that lawyer or law firm and the reference is purely intended to unfairly manipulate search engines in favor of the firm’s website by using the name of another firm or lawyer. Yet another example of prohibited techniques would be the use of false, deceptive or misleading meta tags on a website. Like hidden text, meta tags are not visible to viewers, but search engines read meta tags, which are properly used to optimize internet search result positions. While the use of meta tags is not prohibited, the use of false, deceptive or misleading meta tags is prohibited.”

“The same analysis applies when lawyers purchase advertising on a search engine keyed to specific words or phrases, e.g. buying Google Adwords. Lawyers may not purchase the name of another lawyer or law firm as a key word in search engines so that the lawyers’ advertisement or sponsored website link appears when a person uses the other lawyer or law firm’s name as a search term.”

“The above are merely examples of the type of website design and optimization techniques that are considered false, deceptive and/or misleading. Lawyers may not use any content or text, including but not limited to hidden text or meta tags, to deceive or mislead the public. Because lawyers themselves often do not construct their own websites, lawyers should take steps to assure that their website designers and optimizers are aware of the Rules Regulating the Florida Bar and that they use techniques and content that are neither false nor misleading and that conform to ethical practices. The Committee strongly encourages lawyers to provide copies of the lawyer advertising rules to their website designers.”

According to the Bar’s notice, the committee will consider any comments received at its meeting during The Florida Bar’s Annual Convention on Thursday, June 27 at 2 pm at the Boca Raton Resort & Club.  Comments must contain the proposed advisory opinion number and clearly state the issues for the committee to consider.  A written argument may be included explaining why The Florida Bar member believes the committee’s opinion is either correct or incorrect and may contain citations to relevant authorities. Any comments should be submitted to Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee 32399-2300, and must be postmarked no later than 30 days from the date of this publication.

Bottom line: This proposed advertising advisory opinion is not final and if you would like to comment on its content, you can direct it to Elizabeth Tarbert as indicated above.

Be careful out there!

Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

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Illinois Disciplinary Review Board recommends that lawyer receive 30 day suspension for making false and/or misleading statements on blog post and for misconduct in closing argument

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Illinois Disciplinary Review Board’s Report and Recommendation that a lawyer be suspended for 30 days for making false or misleading statements about her disciplinary record on a public blog post and engaging in misconduct in closing arguments as a prosecutor in criminal cases she was prosecuting.  The case is In the Matter of: Laura J. Morask, No. 6195102 (March 8, 2013).  The Report and Recommendation is at: http://www.iardc.org/HB_RB_Disp_Html.asp?id=10840.

According to the Report, the lawyer was a twenty-year Cook County, Illinois criminal prosecutor who was running for judge.  She was charged with making false and misleading statements in an internet response/blog to a negative judicial evaluation which alleged that she had engaged in multiple improper closing arguments.  The lawyer stated, inter alia, that she had been “completely cleared” of the claims after a “full and complete hearing.”

The Report stated that, with regard to the underlying disciplinary investigation, “(i)n February 2006, a majority of the Inquiry Panel concluded that formal disciplinary proceedings were not warranted at that time. However, because the Panel was concerned that Respondent’s conduct during the trials in question may have been inconsistent with the requirements of the Rules, the panel sent a letter in which it “admonished” Respondent to review the Rules of Professional Conduct and to take steps to ensure that her future conduct was consistent with the Rules. The letter to Respondent ended by stating, “If the Panel receives evidence of similar conduct by (the lawyer) in the future, it may reopen this investigation for future review.”

The lawyer testified at the hearing before a disciplinary board that she “sincerely believed the truth” of what she wrote and was irrational and sleep-deprived due to the rigors of the campaign.  The disciplinary board found that the lawyer violated Illinois Bar Rule 7.1 by making misleading statements in a blog post; however, it also found she did not have an intent to deceive when she made the statements.

The Report further stated:

“(t)he (lawyer’s) act in drafting and sending the e-mail for publication was an intentional and deliberate act.  Respondent’s e-mail was undisputedly intended to blunt the criticism of her conduct in the CCL (Chicago Council of Lawyers) evaluation.  Respondent’s actions may have been ‘in haste’ but were not inadvertent: she had three days to craft her 700 plus word response to the blog post and the CCL evaluation. At the time she drafted her response, she should have known and could easily have known that she had not been exonerated by the ARDC, contrary to the impression she created in the response. While she may have been “upset” and “sleep deprived” as she has claimed, she clearly had the presence of mind to research the Code of Judicial Conduct and to describe in some detail the very cases that were the subject of the ARDC Inquiry Board proceedings, yet she did not take the obvious and simple step of looking at her own letters from the ARDC which were clear and unambiguous…(t)he effect of the e-mail was deceitful and…violated Rule 8.4(a)(4).  Her beliefs, even if sincere, that she had a full hearing before the Inquiry Board, that she had been exonerated, that the public could learn the outcome of the ARDC’s investigation, and that she did not believe her statements were deceptive to readers of the blog, were ‘entirely unreasonable’. (citation omitted). Those ‘beliefs’…simply ignored unpleasant facts that were clear as day and readily available. Both Respondents chose to recklessly shut their eyes and engage in the sort of wishful thinking that would allow them to accomplish ends which would not be possible if they had verified easily verifiable facts. In so doing they violated Rule 8.4(a)(4).

The Report concluded that, “as a matter of law”, the lawyer violated the Illinois Bar Rules “by reason of her purposeful conduct in disseminating false and misleading statements and her utter disregard for the truthfulness of those statements, the effect of which was to perpetrate a fraud upon the public.  Where, as here, Respondent failed to take the simple step of verifying facts which were at all times in her possession, the fact that Respondent may have convinced herself that she was correct does not alter the underlying dishonesty because her belief, even if sincere, was entirely unreasonable.”

The hearing board found that lawyer did not make improper statements in closing arguments in three felony criminal cases and recommended that those allegations be dismissed and that the lawyer be reprimanded only for the false and misleading statements on the blog post; however, the Report found that the hearing board erred in that finding and recommended that the lawyer be found guilty of violating Bar Rules for both the false and misleading blog statements and improper closing arguments and that she be suspended from practice for thirty (30) days.

Bottom line:  This is yet another example of a lawyer who may ultimately be disciplined for statements made on public blog post.  This time it was an alleged false response to what the lawyer apparently believed was an unfair evaluation of her qualifications while she was running for election as a judge in Cook County, Illinois.

Be careful out there!

Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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Virginia Supreme Court rules that Virginia Bar cannot prosecute lawyer who named clients and discussed cases on public blog without their permission but can require a disclaimer

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Virginia Supreme Court opinion which ruled that the Virginia State Bar cannot prosecute a lawyer for naming clients in a public blog; however, the Virginia Bar Rules can require a lawyer to place an advertising disclaimer on a blog originating from the lawyer’s website.  The opinion is Horace Frazier Hunter v. Virginia State Bar, Record No. 121472 (February 28, 2013).  The opinion is at http://www.courts.state.va.us/opinions/opnscvwp/1121472.pdf.

According to the majority opinion, the lawyer “authors a trademarked blog titled ‘This Week in Richmond Criminal Defense’, which is accessible from his law firm’s website….  The blog, which is not interactive, contains posts discussing a myriad of legal issues and cases, although the overwhelming majority are posts about cases in which Hunter obtained favorable results for his clients.  Nowhere in these posts or on his website did (the lawyer) include disclaimers.”

The Virginia Bar presented evidence that the lawyer posted 25 discussions about specific cases and 5 discussions about legal issues on his blog.  In 22 of the cases that were discussed, the lawyer had represented the criminal defendant and had obtained favorable results.  The blog did not include a disclaimer stating that the results were not intended to suggest that he would obtain similar results in other cases, which was required for advertisements under the Virginia Bar Rules.  The lawyer testified that he believed it was important to name his clients to give an accurate description of the case, and that he did not believe it was necessary to obtain their permission since the cases were a matter of public record.  He also acknowledged that marketing was one of the reasons for his blog.

The Virginia Bar argued that the lawyer revealed confidential information that could be embarrassing and/or potentially injurious to the clients and therefore, the content of the blogs revealed confidential information and violated the Bar Rules if the lawyer did not obtain the client’s consent or an exception applied.  The opinion disagreed and found that the information in the lawyer’s blog was a matter of public record and stated that “(t)o the extent that the information is aired in a public forum, privacy considerations must yield to First Amendment protections…in that respect, a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom.”

The opinion upheld the advertising disclaimer requirement of the Virginia Bar Rules stating that the posts were commercial speech and had the potential to be misleading, the Virginia Bar had a substantial governmental interest in protecting the public from potentially misleading attorney advertising and, as a result, the disclaimer requirement does not violate the First Amendment.  The opinion contrasted the commercial nature of the lawyer’s blog with other legal blogs noting that the lawyer’s blog is posted at his law firm’s website, in contrast to blogs which are published on a website other than the lawyer’s website and which allow commentary.  “Instead, in furtherance of his commercial pursuit, (the lawyer) invites the reader to ‘contact us’ the same way one seeking legal representation would contact the firm through the website.”

A strong dissent by one of the justices stated that the blogs were political speech, that heightened scrutiny should be applied, and that the Virginia Bar Rules could not require the disclaimer under these facts.

Bottom line:  In Virginia, at least, it appears that lawyers are permitted name clients and provide information that is “public record” in their public blogs.  Other state Bar rules (including Florida) prohibit lawyers from revealing confidential client information, even if it is a matter of public record.

Be careful out there!

Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

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Illinois disciplinary commission files complaint against lawyer alleging, inter alia, that her public blogs were false and prejudicial to the administration of justice

Hello everyone and welcome to this Ethics Alert blog which will discuss the disciplinary Complaint that was recently filed by the Illinois Attorney Registration and Disciplinary Commission alleging that a lawyer’s blog posts were, inter alia, false, dishonest, deceitful, and prejudicial to the administration of justice.  The opinion is: In the Matter of Joanne Marie Dennison, No. 6192441, Commission No.2013PR00001 (January 8, 2013.  The disciplinary Complaint is at: https://www.iardc.org/13PR0001CM.html.

According to the Complaint, the lawyer started two blogs, one called, “marygsykes – An attorney blog concerning corruption and greed in the Probate Court of Cook County,” and the other called “marygsykes”, after a Cook County, Illinois Circuit Court judge disqualified her from continuing to serve as an attorney for the guardian of an individual named Mary Sykes.  The judge found that the lawyer had notarized the signatures of Sykes and her daughter on a document which provided a benefit to the daughter at a time when Sykes might have suffered from dementia.  Sykes’ daughter was the guardian and the lawyer’s client.

The Complaint also states that the lawyer’s public blogs described what she called the “sleazy world of probate” and states: “(w)hile the above case has a long, long history, much of which is documented on a blog to be found at http://www.marygsykes.com, the reality of the situation is that this probate proceeding boils down to garden variety theft, embezzlement, malpractice and malfeasance by attorneys and the court…” The lawyer’s blog also identified certain court-appointed guardians by name and initials and described them as “tortfeasors.”

Also according to the Complaint, “(t)he blogs were open to the public and were not password-protected.  (The lawyer) knew or should have known that the contents of her blogs were continuously available to anyone with access to the Internet.  (T)he lawyer has a purported disclaimer on her blogs, which included the following language:

Sorry, but portions of this blog have to be entertaining so we can get the word out.  There is most certainly a great deal of (stinging) truth in it, esp. for the GAL’s (sic), the probate court and a society that ignores (thereby condoning) the sleazy world of probate, and in particular the 18th floor of the Daley Center in Chicago, but everyone needs to understand, these are not pleadings, there is no Motion, Response and Reply set by any court, together with extended legal argument recorded by a court reporter and subject to a Motion to Reconsider if errors or new evidence is found.” 

Bottom line:  This is an example of the risk that lawyers take by making controversial public comments in the digital age.  In this case, the lawyer may firmly believe that she is providing a public service by blogging about alleged corruption in the probate practice in Cook County, Illinois; however, the Illinois disciplinary commission has seen the blogs and apparently does not agree.  Keep in mind that these the allegations have yet to be proven.  Stay tuned…

…and be careful out there!

Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

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