Wednesday, December 19, 2007

BLOGS - Their Effectiveness & Potential For Malpractice

According to an article in Wisconsin Lawyer by Thomas J. Watson (Wisconsin Lawyers Mutual Insurance Co., Madison) in an interview with Tracey Wood, (Van Wagner & Wood) Attorney at Law and BLOGGER (Wisconsin Criminal Laws & Wisconsin Drunk Driving Laws) and Dan Pinnington (Lawyers' Professional Indemnity Co. in Toronto), BLOGS provide effective marketing communications, but they also are a potential for malpractice. That article is summarized below.

BLOGS
  • 10 million + Americans have a BLOG
  • Readership up by 50% in past 10 years
  • Informs current clients, attracts potential clients, markets legal services
  • Gen X'ers [people aged 28-42] and Millennials [people aged 27 or younger] judge attorneys by their web presence
  • Madison lawyer Tracey Wood has a blog, and she agrees with Pinnington. "Our blogs have helped us establish more of a presence on the Internet. People do not look for attorneys in the yellow pages anymore - they find them through referrals and Internet searches."
  • Attorney Wood receives referrals from her website and BLOG regularly
  • Spend the time to post to it regularly
  • BLOG establishes expertise in a particular area of law if that lawyer puts up content that is current, informative, and insightful

RISKS

The article provides the following categorization of BLOGS: information or advisory formats, and makes the following assessments.

  • Advisory BLOGS give legal advice and risk establishing an attorney-client relationship; conversely, informational BLOGS add a voice to online information devoid of legal advice
  • Law firms should avoid advisory BLOGS
  • Law firms should avoid BLOGGING in any environment that seeks to establish itself as an authority
  • "Many blogs have the comment feature turned off to avoid spam comments or other inappropriate replies being posted." Wood says, "In our blogs, we try to give a general overview of a certain area of law, or alert readers to interesting issues in our field."
  • Disclaimers are a must - include both notice that no attorney-client relationship is established and no legal advice is being or is intended to be given

WALKING & CROSSING THE MALPRACTICE LINE

The article provides:

  • Canadian insurance underwriter, Pinnington says, "I think it could be argued that referring a client to information posted on your blog post could be construed as providing `advice' from the blog." (See last note below).
  • Do not dispense legal advice.
  • Do not create any lawyer-client relationships.
  • Do not breach any current client confidences.
  • Do not make a false or misleading communication about your services.
  • Treat your blog like any other form of communication to clients or potential clients.
  • Assume your blog is a form of advertising or marketing, and follow the Wisconsin Supreme Court rules governing lawyer advertising and marketing.

ADDITIONAL COMMENTARY

  • Wisconsin websites and BLOGS fall under the rules of advertising (Wisconsin Supreme Court Rules 20:7.1, 7.2, 7.3, and 7.4)
  • Seek out information regarding client communications on the web in the state of Wisconsin
  • If you market into another state, the general rule of thumb is that the ethics rules of that state apply to you whether you are licensed in that state (NY specifically states same)
  • Webmasters should not include states in any of the meta data or content (unless unavoidable) that would indicate a desire to market into a state in which the firm does not do business - natural exceptions to the rule would be those associated with a lawyer's credentials such as law schools, prior employment, and prior practices
  • Google Webmaster Tools provides a means by which webmasters can localize a website for search purposes
  • Pinnington's comments regarding directing people to information on the Internet (where he states that same could be construed as giving advice from that source [if a lawyer directs a potential or current client to their website or BLOG]) may need some clarification. In almost all situations, the lawyers' website or BLOG information is derived from some other source (for example, the Wisconsin Justice Department, CCAP, or a county court clerk's website). A lawyer's website often serves as a convenient repository of link to frequently referenced facts, links to other websites (such as is often found on a resources or law library page), or the attorney's credentials. In those instances, it would be easier and natural for a lawyer to refer a client to their website, and directly to that information ("just click on 'whatever'"). As well, attorneys often publish printed newsletters, and place those on their sites, subsequently referring a client to that article. We believe that Mr. Pinnington meant to refer to the types of articles that claim to be an authority on a subject and seek to dispense legal advice therefrom, or to articles posted by a channel that means to establish itself as an authority in some regard; with that, we concur. Therefore, if the channel in which you BLOG is a recognized authority or referenced by other online mediums as such, then you may be walking that thin line.... or crossing it. We note that Attorney Tracey Wood's BLOGS are posted on her website, which establishes itself as a piece of advertising, and on BLOGGER, which does not establish itself as authoritative on any matter... looks safe to us.

^.com^

No comments: