Are You Blawging, Or Flawging?

And here's the thing ' that's absolutely right. Attorneys who blog can reap this benefit. They can also engage with a wider circle of other attorneys, have a more satisfying professional life, and become better lawyers ' all via the process of regularly grappling with legal issues through their blog.

But that's only if they love to write, and love to engage with others through their writing. And therein lies the key difference between “blawging” and “flawging.”

The Increasingly Blurry Line Between 'Blogs' and 'Websites'

The “long copy sells” concept has been met with an unfortunate fellow traveler in recent years: the idea that attorneys need to create a lot of “fresh content” for search engines in order to rank as highly as possible in Internet search results. This has created a rash of sites that are called “blogs.” They may facially resemble the real thing, but they are simply husks filled in with ghost-written articles, marketing pitches, content scraped from other blogs and keyword-stuffed pieces designed for no human reader. These “blogs” don't have a community of commenters, they aren't advancing the discussion in an area of law, and they do nothing to make their putative authors better and more engaged attorneys. They're marketing vehicles, pure and simple.

And frankly, they're inartful ones at that.

A polished website can market an attorney or firm and provide enough background material ' articles, whitepapers, FAQs, etc ' to help build enough content to satisfy any potential client looking for more detail before making the hiring decision. It's not necessary to do this under the label of a “blog.” Doing so without the drive to write and engage simply looks cheap and foolish. Few will confuse the authentic voice of a blog author with ersatz recycled material spewed out via a flawging site.

Ethics Issues

For attorneys, there's also more at stake than the relative lack of efficacy of a flawging site. The more a “blog” pretends to be something it is not, the more the attorney behind it risks running afoul of the rules of professional conduct. Lots of people argue both sides of this issue in generalities, but let's get into some specifics.

“Blogs aren't subject to the attorney advertising rules.”

That's correct. If what you've got is actually a blog. A site run by an attorney, offering thoughts and analysis on legal subjects, administration of justice, public policy, etc. is not “commercial speech” and will not be subject to the attorney advertising rules. This is true even if the attorney has a business development motive in operating the blog. The entire first amendment framework of American media depends on economic motive alone not being sufficient to render a communication “commercial speech.”

Problems start to arise when the blog begins to stray from its true nature. No one would seriously entertain the notion that a law firm could slap the label “blog” on its website and suddenly be immune from the attorney advertising rules. Yet that's largely what many flawging lawyers have done by setting up “blogs” that look like marketing websites in every respect save the name.

One instructive example is the case of Richmond, VA, criminal defense attorney Horace Hunter. Hunter's “blog” was actually a closer case than many flawging websites, as it at least featured posts that Hunter had written himself, involving real matters and topics relating to Hunter's cases in the Richmond courts (the fact that they involved writing about clients is a separate issue entirely). Yet Hunter was disciplined by the Virginia Bar for not including a mandatory advertising disclaimer on his blog, and this decision was upheld by the Virginia Supreme Court. In its decision, the court found dispositive the following facets of Hunter's blog:

• Virtually every post predominantly described cases where Hunter got a favorable result for a client;
• Most posts mentioned the name of Hunter's firm (as well as his name);
• Hunter's blog was a page on his firm's marketing website (rather than a stand-alone site);
• The blog had the same look and feel as Hunter's marketing website, including the site's “frame”, prominent placement of firm name and marketing message, and “contact us” form; and
• The blog lacked any interactivity; readers could not comment on Hunter's blog posts.

No single one of these factors is necessarily a problem, but in combination they led to the conclusion that what Hunter called a “blog” was more appropriately considered lawyer marketing, and thus subject to Virginia's attorney advertising rules. While there is no guarantee that another state would find similarly, the decision provides good guidance on where blogs cross the line into out-and-out marketing.

Ghost-blogging

There is a growing field of providers offering “ghost blogging” services: professionally written posts for those too busy to regularly blog on their own.

I've already covered the ineffectiveness of using third-party content to get the relationship-building and becoming-a-better-lawyer benefits offered by writing an actual blog. But ghost-blogging also carries special ethical issues for attorneys.

Keep in mind that I'm not talking about collectively- or professionally-written content that appears without a byline on a website, blog or article. I'm talking about blog posts, ostensibly written by an attorney and appearing under that attorney's name on their blog. There are two related ethics problems that arise from this behavior, the first having to do with Model Rule 8.4 and the second having to do with the advertising rules.

There's a crucial difference between ghost-blogging and other situations ' like pleadings, articles and letters ' where the labor of other writers may appear under a single lawyer's byline, and this difference can be summed up in a single phrase: the intent to deceive. An attorney using this method is effectively claiming someone else's words as their own in order to bolster the attorney's credibility. That's textbook deception, and it violates ABA Model Rule 8.4(c), which prohibits “dishonesty, fraud, deceit or misrepresentation.”

Does adding a disclosure of the ghost-blogging to the fine print in the blog's terms of use solve the problem? No. While so doing may (or may not) address the issue of out-and-out deception, it also concedes the obvious: that the putative “blog” is really just a marketing vehicle cloaked in a put-on veneer of credibility, competence and engagement. Remember everything I wrote above about how a proper blog doesn't fall under the attorney advertising rules as it is not “commercial speech?” Well, that goes out the window if it turns out you're paying someone else to create all of that writing under your name in an effort to build your image. What you call a “blog” will be treated as the advertisement that it is ' complete with the question of whether any disclaimer can truly cure the deception caused by an attorney claiming thoughts and expression written by others as his or her own.

Conclusion

Ultimately, flawging suffers the twin defects of being both ineffective and unethical. The good news is that real blogging remains a rewarding outlet for those attorneys who love to write. And what's more, the increasing sophistication of search engines like Google is rapidly cratering the effectiveness of hackneyed tactics like those used by the worst offenders amongst the flawging sites. So blog if you need to scratch the writing itch. Otherwise? Polish the content on your main website, make it ultra-useful for readers, but don't ever play it like it's something it is not.

Josh King is vice president and general counsel of Avvo.com, an online legal Q&A platform, directory and marketplace.

Lots of attorneys are being told that they need to start blogging (or “blawging”, as many attorneys refer to it). From a marketing perspective, this advice makes a lot of sense. There's an old advertising adage, credited to David Ogilvy from the pre-”Mad Man” days of advertising, that when it comes to big-ticket purchases, “long copy sells.”

The idea is that anyone who is considering spending a lot of money on something ' be it a luxury car, a private plane or legal services ' is going to be far more influenced by having a ton of information than they are by being presented with nothing more than a pithy tag line or a series of evocative images.

So, the thinking goes, attorneys who blog can create this “long copy”: a wall of content about them, their practice, their approach to the law and legal problems.

And here's the thing ' that's absolutely right. Attorneys who blog can reap this benefit. They can also engage with a wider circle of other attorneys, have a more satisfying professional life, and become better lawyers ' all via the process of regularly grappling with legal issues through their blog.

But that's only if they love to write, and love to engage with others through their writing. And therein lies the key difference between “blawging” and “flawging.”

The Increasingly Blurry Line Between 'Blogs' and 'Websites'

The “long copy sells” concept has been met with an unfortunate fellow traveler in recent years: the idea that attorneys need to create a lot of “fresh content” for search engines in order to rank as highly as possible in Internet search results. This has created a rash of sites that are called “blogs.” They may facially resemble the real thing, but they are simply husks filled in with ghost-written articles, marketing pitches, content scraped from other blogs and keyword-stuffed pieces designed for no human reader. These “blogs” don't have a community of commenters, they aren't advancing the discussion in an area of law, and they do nothing to make their putative authors better and more engaged attorneys. They're marketing vehicles, pure and simple.

And frankly, they're inartful ones at that.

A polished website can market an attorney or firm and provide enough background material ' articles, whitepapers, FAQs, etc ' to help build enough content to satisfy any potential client looking for more detail before making the hiring decision. It's not necessary to do this under the label of a “blog.” Doing so without the drive to write and engage simply looks cheap and foolish. Few will confuse the authentic voice of a blog author with ersatz recycled material spewed out via a flawging site.

Ethics Issues

For attorneys, there's also more at stake than the relative lack of efficacy of a flawging site. The more a “blog” pretends to be something it is not, the more the attorney behind it risks running afoul of the rules of professional conduct. Lots of people argue both sides of this issue in generalities, but let's get into some specifics.

“Blogs aren't subject to the attorney advertising rules.”

That's correct. If what you've got is actually a blog. A site run by an attorney, offering thoughts and analysis on legal subjects, administration of justice, public policy, etc. is not “commercial speech” and will not be subject to the attorney advertising rules. This is true even if the attorney has a business development motive in operating the blog. The entire first amendment framework of American media depends on economic motive alone not being sufficient to render a communication “commercial speech.”

Problems start to arise when the blog begins to stray from its true nature. No one would seriously entertain the notion that a law firm could slap the label “blog” on its website and suddenly be immune from the attorney advertising rules. Yet that's largely what many flawging lawyers have done by setting up “blogs” that look like marketing websites in every respect save the name.

One instructive example is the case of Richmond, VA, criminal defense attorney Horace Hunter. Hunter's “blog” was actually a closer case than many flawging websites, as it at least featured posts that Hunter had written himself, involving real matters and topics relating to Hunter's cases in the Richmond courts (the fact that they involved writing about clients is a separate issue entirely). Yet Hunter was disciplined by the Virginia Bar for not including a mandatory advertising disclaimer on his blog, and this decision was upheld by the Virginia Supreme Court. In its decision, the court found dispositive the following facets of Hunter's blog:

• Virtually every post predominantly described cases where Hunter got a favorable result for a client;
• Most posts mentioned the name of Hunter's firm (as well as his name);
• Hunter's blog was a page on his firm's marketing website (rather than a stand-alone site);
• The blog had the same look and feel as Hunter's marketing website, including the site's “frame”, prominent placement of firm name and marketing message, and “contact us” form; and
• The blog lacked any interactivity; readers could not comment on Hunter's blog posts.

No single one of these factors is necessarily a problem, but in combination they led to the conclusion that what Hunter called a “blog” was more appropriately considered lawyer marketing, and thus subject to Virginia's attorney advertising rules. While there is no guarantee that another state would find similarly, the decision provides good guidance on where blogs cross the line into out-and-out marketing.

Ghost-blogging

There is a growing field of providers offering “ghost blogging” services: professionally written posts for those too busy to regularly blog on their own.

I've already covered the ineffectiveness of using third-party content to get the relationship-building and becoming-a-better-lawyer benefits offered by writing an actual blog. But ghost-blogging also carries special ethical issues for attorneys.

Keep in mind that I'm not talking about collectively- or professionally-written content that appears without a byline on a website, blog or article. I'm talking about blog posts, ostensibly written by an attorney and appearing under that attorney's name on their blog. There are two related ethics problems that arise from this behavior, the first having to do with Model Rule 8.4 and the second having to do with the advertising rules.

There's a crucial difference between ghost-blogging and other situations ' like pleadings, articles and letters ' where the labor of other writers may appear under a single lawyer's byline, and this difference can be summed up in a single phrase: the intent to deceive. An attorney using this method is effectively claiming someone else's words as their own in order to bolster the attorney's credibility. That's textbook deception, and it violates ABA Model Rule 8.4(c), which prohibits “dishonesty, fraud, deceit or misrepresentation.”

Does adding a disclosure of the ghost-blogging to the fine print in the blog's terms of use solve the problem? No. While so doing may (or may not) address the issue of out-and-out deception, it also concedes the obvious: that the putative “blog” is really just a marketing vehicle cloaked in a put-on veneer of credibility, competence and engagement. Remember everything I wrote above about how a proper blog doesn't fall under the attorney advertising rules as it is not “commercial speech?” Well, that goes out the window if it turns out you're paying someone else to create all of that writing under your name in an effort to build your image. What you call a “blog” will be treated as the advertisement that it is ' complete with the question of whether any disclaimer can truly cure the deception caused by an attorney claiming thoughts and expression written by others as his or her own.

Conclusion

Ultimately, flawging suffers the twin defects of being both ineffective and unethical. The good news is that real blogging remains a rewarding outlet for those attorneys who love to write. And what's more, the increasing sophistication of search engines like Google is rapidly cratering the effectiveness of hackneyed tactics like those used by the worst offenders amongst the flawging sites. So blog if you need to scratch the writing itch. Otherwise? Polish the content on your main website, make it ultra-useful for readers, but don't ever play it like it's something it is not.

Josh King is vice president and general counsel of Avvo.com, an online legal Q&A platform, directory and marketplace.