Law Office Management
Apr. 2, 2014
Think Before You Blog
Lawyers must consider of issues of ethics and plagiarism when they update their websites.
Most California attorneys might have guessed by now that they can't get away with posting information willy-nilly on the Web without the State Bar having a say in the matter. Though nothing has been formalized in terms of the Rules of Professional Conduct, the State Bar recently issued a formal ethics opinion that provides direction on when the ethics rules apply to a lawyer's use of the Internet for business development, particularly when the message is "concerning the availability of professional employment" and is considered a communication for the purposes of advertising. (See Cal. St. Bar. Stndg. Comm. on Prof'l Resp. and Conduct, Formal Opn. No. 2012-186.) In California, if an attorney posts information online, it must be educational, useful, and accurate. Though this is a seemingly subjective standard, considering the actions of other state bars, it may be best to err on the side of caution. Take Florida, for example. The state is already notoriously strict with its attorneys regarding advertising and solicitation, and recent amendments to attorney advertising rules now subject Florida law firm websites to all advertising restrictions. Therefore, if a Florida law firm's website expresses statements of "public concern," as almost any law firm website with a legal blog does, such statements must be "objectively verifiable." In other words, an attorney's expression of a breaking legal issue or interpretation of a recent case result must be objectively verifiable by the state bar! Not surprisingly, after the amendment, the Florida State Bar's Standing Committee on Advertising ruled that one law firm's website violated state ethics rules because of statements such as these: - "[T]here may have been a time when we could trust big corporations ... but those times are over." - "Government regulation of ... consumer safety has been lackadaisical at best." - "[W]hen it comes to 'tort reform' there is a single winner: the insurance industry." The firm and its named partners sued, claiming a First Amendment violation. (Searcy v. The Florida Bar, No. 13-CV-00664 (N.D. Fla. filed Dec. 11, 2013).) Also at issue were run-of-the-mill statements about the firm's services and past cases, which were said to be "inherently misleading" because the statements did not include all "pertinent" facts. The case is still pending. California is not affected by Florida rules and we are still waiting for our State Bar to take a definitive stand on law firm websites and blogging, it is safe to say that a lawyer (or the third-party legal marketing firm hired to blog on the lawyer's behalf) should proceed with caution. The State Bar will probably not look fondly upon blogging about your law firm's successes; suggesting that the reader call you if a particular legal issue or need arises; implying that your firm's victory in one case will lead to the same result in the reader's case; or any other statement that implies pecuniary gain on your end. Duplicate Content and Plagiarism
According to Google, 25 to 30 percent of content on the Web is what Google refers to as "duplicate." This means that content online is often reused or regenerated. As long as the author grants permission and is credited appropriately, this is not plagiarism per se, and reusing another author's content can actually be a savvy marketing move that sparks a professional synergy between the blogger and the original writer. But what happens when permission is not given? Plagiarism is an increasingly pertinent concern, as many legal- marketing companies approach lawyers - who may or may not be Web-savvy - with empty promises and false pretenses. As discussed above, though ideally a comprehensive Web-marketing campaign includes a consistently updated legal blog, that's just the beginning. If a lawyer, or a legal-marketing firm, lifts previously existing Web content and places it in the firm's blog, you are not gaining the business development advantages that you are seeking (and paying for). In fact, it's probably hurting your search engine rankings. Google strives to offer only one version of a piece of content in its results, rather than several similar versions of the same content. And except in rare circumstances, Google will try to rank the site that originally published the content, rather than sites that reuse the content. This often takes sites with duplicate content out of the equation and can even damage the search-result rankings of your blog's good, original content. Also, by using any of the very effective online plagiarism/copyright checkers, website owners can and do regularly scan the Web for their content to ensure that they are reaping the benefits of their work. If an author finds that your website is reusing his or her content, or the content is "appreciably similar," he or she can report it to Google and file a request to remove it under the Digital Millennium Copyright Act (DMCA). Google documents each notice of alleged infringement, and sends a copy of each notice it receives "to a third-party which may publish and/or annotate it." Thus, at the end of the first page of search results a notice will appear on the Web that someone is on the wrong end of a copyright dispute. The result? Penalization from Google (removal from search-engine rankings) and a potential legal battle under DMCA and other relevant copyright laws. On a related note, the unauthorized use of copyrighted images on a law firm's website or blog can also lead to legal liability. Although many marketers or attorneys may think it's harmless to lift an image or photo from Google Images or a website, the owners of those images generally do not agree. For example, Getty Images is notorious for scanning the Web for unauthorized uses of its images. And although the company recently released thousands of images for free embedding, unauthorized use of Getty's images that are not free will spur the company to send a notice of copyright violation to the website owner and charge a fine. Fighting the claim is challenging, as Getty includes a screenshot of the unauthorized use in the letter. Blaming the marketing company will not work either, as you, the registered owner of the website, are responsible for its content. The Moral
Legal blogging is no different from driving a car: As long as one plays by the rules, there's probably little risk of getting pulled over for speeding - or snagged by the State Bar for being shady. In today's digital world, an active online presence is necessary to stay competitive, relevant, and in the game. But every lawyer should be sure to protect his or her online reputation with an ethically sound blog that is also above legal reproach. Attorney Kristen Marquis's Los Angeles-based company, Web Presence, Esq, assists lawyers in building their brand online.
Kari Santos
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