Blogging violations: The common legal pitfalls of blogging

Having a blog is a wonderful tool for connecting with current and prospective clients. It can supplement your firm’s pages on its practice areas, be a forum to demonstrate knowledge to prospective clients and provide general legal information. If you have a blog post about an issue that is directly related to a prospective client’s current problem, it will inspire confidence that you have the ability to assist them.

But, lawyers often fail to think through the legal issues when they post new entries to their blogs. So, what are the biggest legal pitfalls in blogging and
how can you avoid them?

Copyright infringement

The most common offense that is committed in blogging is copyright infringement. This often happens when bloggers use a general internet search to find images for their websites. There are also many instances where a blogger will blatantly copy another’s article without permission. I have had my work stolen from my blog at least four times – and two of those times the theft was committed by other lawyers!

Under US copyright law, you have rights to your work the moment you have an original work of authorship that is fixed in any tangible medium. This includes any writing or photograph that is saved in your computer. As the copyright holder, you have exclusive control over where that work is copied, distributed, displayed, performed and what derivative works may be created from it. Therefore, no one can use your original work on your blog without your permission. They can, however, use any facts or ideas contained in your work.

Every blog post should have at least one image. Most lawyers are not photographers, so we need to get our images from somewhere. Many bloggers commit the mistake of running a ‘Google Images’ search for the type of image they are looking for and using any photo they like from the results. Many believe that this is permissible so long as they give an attribution to the photographer and a link to the source. This is often not permissible and, because you’ve provided a link to the original website, you’ve made it easy for bloggers or photographers to see that you’ve stolen their work.

If you need images for your website, get permission from photographers to use their work, purchase images from a site such as iStock or use an image that has
a ‘creative commons’ license. Photographers put such licenses
on their work to allow others to use it as long as the user abides by the requirements of the license. You must always provide an attribution and the artist may restrict your ability to modify
or commercialise their work.

Client confidentiality

There is a right way and a wrong way to write about your clients’ cases. Anyone may write about public information from your case. This includes the lawyer or firm that represented the client. If you want to do this, you owe your clients the courtesy of informing them in advance that your firm may do this so that they don’t feel blindsided by your post. Additionally, if you are going to write about your cases, you need to be careful that you don’t give the impression that you released client information into the public record just so that you could blog about it later.

It would also be prudent to wait until a matter is complete before blogging about it. You do not want to risk wrongly influencing the court or the jury in any way. You may also write about your cases in a general sense without mentioning your clients by name or the specifics of the case. The inspiration for my blog posts often comes from client questions and concerns, but I’ve never named a client in a post and I don’t think I would without explicit permission.

Legal advice

If you or your firm has a blog, it needs to have a disclaimer that explicitly states that your blog provides general information and does not constitute legal advice.

You may wish to add that reading your blog does not create attorney-client relationship with anyone. You should
also check your regulator’s ethical rules
to determine if any other disclaimers
are required.

Public comments

One of the purposes of having a blog is to interact with your readers. Sometimes the interaction following a post is richer than the post itself. For this reason, you should allow comments on your blog posts. The downside of this is that, regardless of what your disclaimer
says, people will leave comments on your site asking for advice about their particular situation.

It is good practice to respond to all comments on your blog posts, as this shows that you listen to your readers.
You should be thoughtful in your response without crossing any ethical boundaries.

Consider what you would say if someone asked you a similar question at a cocktail party. You might provide some basic general information and refer them to a local lawyer for a proper consultation.

The legalities of blogging and the internet is an area that is constantly developing as new statutes and case
law emerge. If you are a blogger, or plan to start a blog, you should stay abreast
of the legal and ethical implications
that apply.

 

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Hunter v. Virginia State Bar

Many legal bloggers were concerned when Horace Hunter was reprimanded by the Virginia State Bar and accused of advertising his services via his blog (see Horace Frazier Hunter v. Virginia State Bar, Ex Rel. Third District Committee, 2013, No. 121472).

There was a concern that all legal blogs would be regulated as advertising. However, two things differentiated Hunter’s blog from other legal blogs:

1. he primarily wrote about his cases that had favourable results – the Virginia Bar said this constituted advertised his lawyering skills; and

2. he didn’t allow comments on his posts, thus there was no public discourse on his site.

The Virginia Bar held that the contents of this blog constituted commercial speech, so he was also required to have an advertising disclaimer on his site. To avoid similar problems, you should do the following.

1. Write to the needs of your audience, not about yourself. Your blog should contain helpful information and resources, and not sound like a commercial. It is permissible to have a general statement at the end of your post that says “If you have questions about this topic, please contact us at…”

2. Allow and respond to comments on your posts.

3. Comply with the ethical requirements of your local regulator.

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Ruth Carter is founder of Carter Law Firm (www.carterlawaz.com) and author of The Legal Side of Blogging for Lawyers.

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