SY 2008-2009, First Semester
Legal blogging has its own set of peculiar issues other than those one can expect from that which ordinary blogging posits. For legal blogging, there appears to be two mutually exclusive ideas, the informal blogosphere and the regulated world of lawyering where like any other profession founded on public service, self-promotion is highly-regulated, if not prohibited.
Incidentally, there are two contending schools of thought on the matter. One believes that legal blogging should be prohibited because it is lawyer advertising. The other says that such is contrary to the freewheeling blogosphere and in conflict with a lawyer’s right to self-expression.
The conduct of a lawyer is governed by ethical rules. The fact that self-expressions are made over the internet does not put it outside these rules. If ever there are ethical guidelines for responsible blogging the same should be uniform for all bloggers but, yes, highly rigid for officers of the court. A separate code of conduct is not required. The existing one for prohibition against lawyer advertising suffices.
This paper addresses the legal ethical issues that face lawyers who blog (or blawg), focusing on the issue as to whether blawging should be prohibited as a form of lawyer marketing or advertising which may possibly lead to violation of other ethical rules such as those against disclosure of client confidences, inadvertent formation of attorney-client relationships, and the unauthorized practice of law.
II. LEGAL BLOGS AND THE LEGAL BLOGOSPHERE
A. HISTORY OF THE LEGAL BLOGOSPHERE
A blog (a contraction of the term “Web log”) is a web site usually maintained by an individual with regular entries of commentary, descriptions of events, or other material such as graphics or videos. Entries are commonly displayed in reverse-chronological order. Blogs provide commentary or news on a particular subject; others function as more personal online diaries. A classification of blogs as to genre includes legal blogs. 
A web log is a website that is updated frequently, most often displaying its material in journal-like chronological dated entries or posts. Most blogs allow readers to post comments, and link from their blogs to one’s posts using the permalink URL or address. In a blog, the content can be published and syndicated separate from the formatting using an RSS feed. Readers can then subscribe to the feed to automatically receive updates. 
The distinctions on the aspect of features of a blog and a website are rather slim that it is duplication for certain sites to create blogs. However, a blog is a website and a feature in a website could be replicated in a blog, and vice versa. But blogs, as compared to a website, are easier to put up. A blog also allows a more dynamic and robust interaction between the author, also known as the “blogger,” and the readers. 
Legal blogs, or blawgs , in its colloquial term, are web logs published by lawyers. Like ordinary blogs, they serve as an informal venue to share information. They have in fact become a medium of a lawyer’s self-expression.
Blawgers come from various walks of legal life. Most of them are law professors, lawyers, or law students bearing commentaries geared toward legal experts and virtually impenetrable for anyone else. They use blawgs to provide analysis, information, and opinion. Some as a way for people with tenure and a lofty opinion of themselves to have their say in yet another forum. The key ones are efforts by lawyers and academics to be public voices, to matter outside the legal world, to connect. Yet while blawgs are blogs, they rarely have the populist touch that is supposed to make blogs blogs. 
Legal blogs emerged from a scattering of postings in the years prior to 2002. This was followed by a community of legal blogs which began to take shape in 2002 to 2003 with a vanguard of law bloggers actively posting commentary, links and reviews on everything, from high profile court cases to new legal market software. As this group discovered other legal-oriented bloggers, they began cross-linking and commenting, forming the nucleus of today’s growing legal blogosphere.
The first directory of legal-oriented web logs was posted to Blawg.com in January of 2003 and numbered 57. In subsequent years, this directory expanded in both size and scope, mirroring the growth of the legal blogosphere itself. 
The legal blogosphere has continually developed from a small number of individual early adopters and techies but has grown to almost anyone who would like to be involved in the world of lawyers and their legal profession. This development is inevitable as the same is just a product of the historical chain of technological advancements which has improved the flow of legal information and ideas.
B. LEGAL BLOGS IN THE UNITED STATES
In the United States, the most patent contribution of the legal blogosphere is the delivery of legal news which is real-time, community-involved, and freely available. The weblogs often enhance or update stories appearing in the print editions of these news organizations, while also giving space to coverage of smaller topics or news stories otherwise ignored. Examples include The Wall Street Journal’s Law Blog, The Blog of the Legal Times, Texas Lawyer’s Tex Parte Blog, and the Houston Chronicle’s Legal Trade. In addition, newcomers such as AboveTheLaw.com exemplify the lowered cost threshold for startups using weblogs to enter the legal news and information business.
Law professors have been actively posting to weblogs since the formation of the legal blogosphere. Weblogs such as Sentencing Law and Policy, Althouse, Lessig Blog, Professor Bainbridge and The Volokh Conspiracy have wide followings, in and out of legal circles. Indeed, it is not uncommon to see a post from a law professors’ weblog become part of a mainstream media story or start a larger discussion within the legal blogosphere. 
Legal reviews suggest that legal scholarship have already embraced weblogs and the legal blogosphere. One example is the Northwestern University Law Review’s Colloquy, a weblog which publishes online both essays and posts as a complimentary addition to its print publication.
A more direct, weblog-only effort is the University of Illinois College of Law’s The Illinois Business Law Journal. Other schools such as Duke, Yale and Harvard are also experimenting with online journals and complementary websites which leverage weblog technologies. 
Even the US Supreme Court has recently made history by citing the blog Sentencing Law and Policy, a year-old web log by Douglas Berman, a professor of law at Ohio State University.  As reflected in a collection of court cases that cite legal blogs, there are 32 citations of legal blogs
from 27 different cases in the United States, with 8 legal blogs being cited (as of 6 August 2006).
C. LEGAL BLOGS IN THE PHILIPPINES
In the Philippines, the famous existing legal blog is that developed as an adjunct to the Jarumay Laurente Pamaos (JLP) Law website. In the same site, the law firm laid down its stand in maintaining legal blogging as a means to ensure that attorneys and law firms shall at all times remain dynamic and relevant. It introduces the blawg site as the law “keeping pace with the advancements in the broader world stage”. An institutional law firm, whether in the Philippines or elsewhere in this porous world, is no longer limited to the geographical location of its head office.
Each must, therefore, find means to contribute to the development and dissemination of the law in the best manner possible to the broadest possible audience. 
The blog is aimed to serve as a “means to communicate ideas and as a medium to educate and disseminate across borders of space, time, color or creed”. Its accessibility and informal nature allows for a freer exchange of ideas that cannot be had in more traditional cyberspace venues.
The fact that there has evolved a new specie of cybercitizens called professional bloggers is testament to this fact. 
The legal blog of JLP Law has also become a “forum for discussion of Philippine laws and legal system for the benefit of the widest audience”. “It serves to be an informal, albeit controlled sounding board from which people from all walks of life may drop a line and pick-up a thing or two, so to speak, in a manner that will not only protect, but more so promote, the munificence and majesty of the law, as well as the dignity of the legal profession.”
III. LEGAL BLOGS OFFLINE: A LAWYER’S TOOL TO FULFILL HIS DUTY TO SOCIETY
In the Philippines, Canon 5 of the Code of Professional Responsibility (CPR) provides that “A lawyer shall keep abreast of legal developments; participate in continuing legal education programs, support efforts to achieve high standards in law schools as well as in the practical training of students and assist in disseminating information regarding the law and jurisprudence.”
A lawyer’s function therefore is not limited to the representation of his clients, but also includes the task of disseminating the law to the public. Each lawyer is, of course, an officer of the Court who is tasked with aiding in the achievement of justice in its broadest sense, which includes the dissemination of even just the most basic of our laws and rules to the very people from whom the law emanates.  Lawyers must assist in disseminating information about the law and jurisprudence. This could be well-accomplished through publications of legal articles in law journals, newspapers or through other media of communications. 
The obligation outlined in the rule is not restricted to the lawyer’s professional activities but is a general responsibility resulting from the lawyer’s position in the community. A lawyer, by training, opportunity, and experience is in a position to observe the workings and discover the strengths and weaknesses of laws, legal institutions, and public authorities. A lawyer should, therefore, lead in seeking improvements in the legal system, but any criticisms and proposals should be bona fide and reasoned. 
Legal blogs and the legal blogosphere combined are believed to be the easiest way of complying with this duty. They are considered a tool which enables the legal profession’s desire to reach out to the laymen from whom the laws emanate. The low cost, ease of use and global reach of the technologies inherent in weblogs make their continuing impact on the legal world a virtual certainty. For today, perhaps the best testament to the healthy state of weblogs and the legal blogosphere is simply the sheer number and diversity of participants. It truly is a global legal community.
As a matter of fact, there are as many quality blogs as there are legal topics in cyberspace. By offering free, well-written content, often filling gaps in general legal news coverage and/or expanded analysis of important cases or regulations of the day, subject matter specific weblogs continue to grow in importance and value. Perhaps, in the process, pressuring businesses relying on existing mediums such as print newsletter services to modify their business models.
But while the subject matter specific weblogs may be freely offered, the authors behind them normally have a business purpose in mind. This purpose highlights another healthy sign of the blogosphere, the growing number of lawyers using weblogs and the blogosphere to market themselves and their expertise. Weblogs are increasingly being recognized as a powerful, inexpensive, marketing and networking tool. Information published into the legal blogosphere can be quickly disseminated and consumed by other bloggers, reporters, politicians, lobbyists, researchers, students, and corporate executives, among others. Any of whom could someday be a client or refer a potential client.
In sum, active involvement within the legal blogosphere can pay dividends in both establishing and enhancing a reputation, which leads to a debate on whether legal blogs are ethical or not in relation to the prohibition on lawyer advertising. 
IV. LEGAL BLOGS ONLINE: ITS PROHIBITION AS A MEANS OF LAWYER ADVERTISING
There seems to be no argument against the obligation of a lawyer to keep everyone informed of all laws, the conflict arises on the manner on how this obligation is to be relinquished. While lawyers need to adapt to the evolution of internet communication, the contents established by these media may raise issues related to their professional responsibility such as advertising and indirect solicitation. In fact, this is the most interesting discussion in the legal blogosphere these days.
In the Philippines, Rule 2.03 of the CPR provides that “a lawyer shall not do or permit to do any act designed primarily to solicit legal business”. The “practice of law is not a trade or craft” and thus, a lawyer may not advertise his skill as a tradesman does”. The practice of law is a branch of the administration of justice and not a mere money-making trade.  It is not a business but a profession.  It is dedicated to the ideal of service and not a mere trade. 
The Supreme Court quoting from H.S. Drinker, legal Ethics (1953), enumerated the following characteristics which distinguishes the legal profession from business: 1) a duty of public service of which the emolument is a by-product and in which one may attain the highest eminence without making much money; 2) a relation as an officer of court to the administration of justice involving thorough sincerity, integrity and reliability; 3) a relation to clients in the highest degree of fiduciary; and, 4) a relation to colleagues at the bar characterized by candor, fairness, and unwillingness to resort to current business methods of advertising and encroachment on their practice or dealing directly with their clients.
It is highly unethical for an attorney to advertise his talents or skills as a merchant advertises his wares. Law is a profession and not a trade. The lawyer degrades himself and his profession who stoops to and adopts the practice of mercantilism by advertising his services or offering them to the public. As a member of the bar, he defies the temple of justice with mercenary activities as the money-changers of old defied the temple of Jehovah. 
However, in the United States, the US Supreme Court in 1978 gave lawyers the First Amendment right to advertise. The traditional practices of attorney advertising are being challenged by the proliferation of online journals that contain legal discussions and background information. The marketing potential, whether explicit or not, of blawgs is raising some tricky ethical questions for the profession, which regulates lawyer advertising. These issues have come to the forefront in recent months, after ethics monitors in Kentucky found lawyer-written blogs to be advertising and subjected them to increased scrutiny. 
The Kentucky controversy involved lawyer Evan Brown who published a blog about legal developments involving the Internet. The state rules would broadly define advertising to include any communication to the public by a lawyer that contains any information about him and his practice. The Kentucky Attorney’s Advertising Commission has finally reached a negotiation that filing fee for a blog entry is required only if the blog contains a link to biographical information about the lawyer. This was the compromise paving respect for the lawyer’s freedom of speech which was said to be restricted by putting up restrictions on blawging. 
On the other hand, consequent to the above incident, New York has established new rules expressly prohibiting advertisement or solicitations that are interactive computer-accessed communications, unless the communication is only accessed by the lawyers or firms “close friend, relative, former client or current client.” A legal blog seems to fit this definition more specifically if the communication is about a lawyer or law firm or it indicates that the lawyer or firm is available for professional employment. A blog is inescapably an advertisement in this context with one of its purposes is to alert the public about ones practice and availability.
Indeed, many states are in the process of revamping their attorney ethics rules, and part of that process involves the prickly issue of whether blogs should be regulated as advertising. On the one hand, states want to protect consumers from unscrupulous lawyer advertising presented under the guise of an online diary.
On the other hand, they want to preserve the free flow of ideas-and valuable legal information presented in a public forum-that the new technology has fostered. 
There are as many as 2000 to 3000 law blogs existing today which discuss topics from all fields of law but as to how much of the content is protected freedom of speech and how much is advertising is really a question of fact.
V. THE LEGAL ETHICS OF BLAWGING
Legal blogs are not per se legal marketing or advertising. It is not correct to equate legal blogs with prohibited legal advertisements and treat them the same. Characterizing them as advertising for the attorney finds no good basis in fact, in law and in plain reason. Hence, its prohibition cannot be implemented just because advertising and solicitation is prohibited under the code of the lawyer’s professional responsibilities.
Ultimately, the bans against advertising are predicated on arguments that the legal profession is not a money-making venture and is “somehow elite — above mere trade”.  There is really no quarrel about this maxim. The idea of lawyer prohibited from advertising himself is as old as the lifeblood theory in taxation. It is true that blogs written under law firm auspices may function to promote the writer and his firm, but they function in many other ways as well, primarily a fulfillment of a lawyer’s duty to the society.
The duty of a lawyer to the society involves keeping abreast with all the relevant issues in the community. All these issues necessarily involve laws. This obligation is said to be fulfilled by expressing his stand on these matters, and in the advent of information technology, a lawyer has to evolve in practicing the profession. He could not stay in the old age manually distributing his opinions and render them useless.
It is in this aspect that blogs take its primary purpose. It serves as a means of a lawyer’s self-expression. Just because one passes the bar does not deprive him of the right to give the testimonies of his intellect on the sole ground that it may violate ethical rules because it may impress people of his skills.
Indeed blogs allow a prospective client to choose his lawyer not based on networking but on the merits of his stand on legal issues. But is not this the right way of selecting counsels? “If we want the best arguments to win in court, why shouldn’t we let the best bloggers win clients, too? State bars should affirmatively encourage legal blogs, rather than chilling them by regulating them as if they were no more significant than a banner on the back of a bus. 
The prohibition then against legal blogging for the sole ground of being in the nature of an advertisement is unfounded. The ban would not necessarily prevent legal advertising. If legal ethics frowns against lawyers who consider the profession as a money-making trade, what is necessary is the clear delineation between what is or what is not advertising and solicitation of clients that are both prohibited under the CPR. This demarcation may need to come up with specific guidelines on how lawyers utilize technological innovations in their practice of law. After all, the profession cannot have a world that shuts itself from the advancements of society.
However, a firm that puts the word “blawg” on what is otherwise an advertisement must comply with the ethics rules. The conduct of a lawyer is governed by a code of ethics anywhere he may be or in whatever form it may be acted upon. The practice of law remains to be not a trade or craft and a lawyer may not advertise his skill as a tradesman does. The fact that self-expressions are made over the internet does not put it outside the rules of the code of a lawyer’s professional responsibilities, in the same way that it does not automatically make any writing of a lawyer made over the internet legal advertising.
Accordingly, even if a blawg is not an advertisement, a firm that permits one of its lawyers to make statements in a blawg that violate ethical rules might be held accountable for those violations. The pride of the legal profession is founded on public service. Making people aware of laws in the form that the latter can easily access are paramount causes beyond the idea of prohibiting legal blogs based on the hypothesis that the same constitute a violation of the rule against advertising and a degradation of the profession.
For legal blogs to be proper, it must be compatible with the dignity of the legal profession. Blogs are forever, as are the transcripts of many chat rooms and other forms of Internet communications.  In addition, even if they are ephemeral, they involve a worldwide audience, which may result to violation of other rules in the conduct of the profession such as confidentiality and unauthorized attorney-client relationship.
In sum, the lawyer who blawgs has to put in his mind the code of conduct of the legal profession. In discussing client matters in his posts, he must use generic or hypothetical stories structured to avoid disclosing the information in such a way as to allow it to be identified. It may also be advisable to place on such blawgs language that disclaims any intent to create an attorney-client relationship with those who read the blawg’s post, and which specifies that the information is not legal advice geared to a particular state or set of circumstances. 
It is for the foregoing reasons that necessary guidelines should be established in developing blawg sites. Attorney and Chicago area blogger Mazyar M. Hedayat has drafted and released a blogging policy for the DuPage County Bar Association, “as well as any committee, firm, or bar association thinking of establishing blogs or wikis in order to foster communication with their members or the public.” It is a concise nine point- policy that every law firm must consider in putting up legal blogs:
- Know and follow bar association guidelines for conduct, as well as the rules of good legal writing. No need to use Blue Book citations but be accurate in your posts because others will look to them as a source of information and news, if not actual research.
- Be mindful of what you write. Remember that you have an audience.
- Identify yourself and write in first person. Make it clear that you are not necessarily speaking for the bar association as a whole. Be sure to disclose any information necessary to keep your statements from being misleading. Use the following disclaimer on your blog or wiki with respect to all posts: unless indicated to the contrary posts do not reflect the views of the bar association, its members, executives, staff, board, or committees, and are the opinion of the writer
- Respect copyright and fair use. Do not plagiarize. Give credit where due by citing to the author of a statement or passage.
- Do not reveal confidential information that could result in liability to yourself, your committee, other bar association members, or the bar association itself.
- Do not comment on active cases or client matters by name except with the approval of those referred to in the post.
- Do not use ethnic slurs, insults, or obscenity. Avoid writing about inflammatory topics solely to pique prurient interests.
- Always try to add to a discussion constructively and ultimately to add value. Do not let your ego get in the way. You are here for the good of the bar association after all.
- Have fun. A blog or wiki can be loads of fun and a terrific way to share the best of your committee with the world. 
In addition to that, LexBlog, a United States-based company that creates blawgs as marketing tools, is routinely asked for a sample law firm blog policy. What was recommended was not a policy per se, but factors that firm needs to take into account in crafting its own blog policy.
- Who owns the blog? Firm or individual lawyer(s)?
Firm ownership is suggested if using to extend brand of firm and enhance reputation of a practice group. Copyright reflects ownership decided.
- Who will blog? One author or multiple authors in a group blog?
The firm approves and identifies all authors and blogs.
- Does the blog(s) have a specific focus or niche?
The narrower the focus, the better. Articulate.
- Does the firm need firm guidelines for blogs?
Review existing guidelines, practices and procedures. How are email newsletters, media relations and client development issues handled? With minor revisions, professional blogging may easily be covered under existing firm practices.
Disclaimers need to state that no attorney/client relationship is being formed and no legal advice is being dispensed.
- Does the firm need to restrict blog content?
Some firms may wish to restrict blog content to be general and informational similar to email newsletters and alerts. Other firms may wish to take a more progressive, and usually more successful, approach to blogging by linking to and referencing other blog posts and news stories. By doing so, you’re joining the conversation as an authority in your field. Depending on the circumstances, lawyers may wish to avoid taking too strong position on a particular legal topic. Generally, you don’t want to be blogging about existing clients and matters that members of the firm are working on.
- What’s the blog posting and comment policy?
Most firms, subject to general oversight, let blog authors write and publish without showing content to practice chairs or marketing prior to posting. Comments from blog
readers should be allowed. To not allow comments, risks embarrassment to the firm. Blog software preferences should enable the blog author(s) or another designated party
to review and approve comments before going live. Expect no more than 3 or 4 comments per month. Appropriate comments may be published.
- How frequently should be blogs be updated?
The most effective bloggers post new content at least once a week. Blog author(s) should not fall below this threshold. To develop a compelling voice, the author should write and post—not someone else. A post should be relatively short—a few paragraphs (200-500 words may be fine). In many cases, take no more than 20 to 30 minutes to write a post.
- What is the role of the marketing?
General oversight. Review blogs from time-to-time. Encourage lawyers to ask LexBlog specific questions about best blogging practices and any technical issues. Work with PR to determine what, if any, PR or marketing will be done to promote blog. Think through how networking with other bloggers and media will be addressed. Decide who responds to media requests directed to blog authors.
- How does the firm ensure that published blog content shares and extends the reach of the firm’s intellectual capital and maintains and enhances the firm’s reputation (quality control)?
Require that new authors participate in LexBlog’s best practices training prior to the blog’s launch. One of the best ways to enter social media discussion is to follow relevant RSS (real simple syndication) feeds and reference other respected bloggers and their posts. The training reinforces this concept and shares other insights and tips for how to write effective, compelling posts including the use of supporting links, graphics, and photos via LexBlog’s platform. 
Lexblog also pointed out the following factors to consider relating to ethical rules on maintaining blogs:
- Follow existing firm protocols and rules.
- Do specific ethics rules exist in your state?
- Follow existing state ethics rules—particularly web advertising rules.
- Use disclaimers on blogs—do not dispense legal advice or create an attorney/client relationship.
- Do not breach client confidences.
- Do not engage in any false or misleading communication. 
Lastly, the best advertisement for a lawyer remains the same in the advent of information technology. It is a well-deserved reputation for competence, honesty and fidelity to private trust and public duty. Of these honesty reigns paramount. A lawyer must not only be honest but must appear to be honest. By his honesty, he gains public confidence and this public confidence is his greatest advertisement, more than any good post in the blawg site can promote.
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