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    Managing Risk: Blogging in Today's Electronic Age

    Blogging may be a useful communication tool for law firms, but if you blog, proceed with caution, because you risk creating an attorney-client relationship and giving legal advice - both no-nos in this electronic age.

    Thomas J. Watson

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    Wisconsin Lawyer Wisconsin Lawyer
    Vol. 80, No. 12, December 2007

    If you attend a legal conference these days, it is not unusual to find on the program schedule a presentation on weblogs, also known as blogs. While blogging has been around since the late 1990s, it has grown in popularity in the past five years. Many technology experts estimate that more than 10 million Americans have created their own blogs, and that readership of these blogs has increased by more than 50 percent in the past 10 years. Blogs generally appear on the Internet as personal journals with various contributors and a variety of topics. Because blogs are an easy way to get information out very quickly, it is no surprise that law firms have gotten into the act. For lawyers, blogs are a way to inform current clients, attract potential clients, and market their legal services.

    For law firms of any size, there are many advantages to blogging. However, there also are some pitfalls. It is important to consider both before diving into the blogging world.

    Why Create a Blog

    If your goal in developing a blog for your law firm is to quickly attract new clients, you may be disappointed. A blog can be one marketing tool for your firm, but it should not be your only focus. You will likely see a number of "hits" on your blog, but these do not always translate into clients. Your client base can grow as a result of a blog, but the growth likely will be gradual. That potential growth is the attraction for many law firms.

    Tom WatsonThomas J. Watson, Marquette 2002, is senior vice president and director of communications at Wisconsin Lawyers Mutual Insurance Co., Madison.

    Dan Pinnington, the director of risk management and law practice management for Lawyers' Professional Indemnity Co. in Toronto, says, "Gen X'ers [people aged 28-42] and Millennials [people aged 27 or younger] will judge you by what they find on the Web - whether it's a blog or a traditional Web site."

    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." Pinnington adds, "In some areas of practice, the yellow pages don't matter anymore. In the criminal and family law areas, they still do, but you need to have a presence in both places. Clients will still `Google you,' often before they call you."

    If your goal is to supplement your other marketing efforts, and to put out legal information that can be useful to your blog's readers, you are more likely to derive some satisfaction from your efforts.

    An effective blog, however, must be maintained regularly, which means you will have to invest some time in it. Good research, quality writing, and regular updates and revisions are essential. "If you put up a blog, you have to be prepared to spend the time to post to it regularly. One to three times per week would be typical. This is where most lawyers fall down," says Pinnington.

    But the Web presence, according to Pinnington, cannot be understated. He says a blog can establish a lawyer as the "go to" person in a particular area of law if that lawyer puts up content that is current, informative, and insightful. "This happens when you come out on top of the pile in a Google search when someone is looking for a lawyer."

    Pinnington and others say that blogs are easy for readers to find on the Internet. Search engines often list blogs ahead of Web sites. Pinnington says, "Some have suggested that blog stands for `better listings on Google.'"

    A blog also can result in referrals. Wood says, "I have had lawyers who are not in my field read what I put on my Web site, along with the blogs, and I do receive referrals from those people all the time."

    With blogs, as with most other things in life, you must consider the advantages and disadvantages. While the advantages are appealing, law firms must be careful when putting out a blog. Along with rewards come risks.

    The Risks

    Depending on the way a law firm creates and uses a blog, some risk could be created. Professional liability insurance companies will take their responsibility of assessing that risk very seriously.

    There are two general types of blogs: informational blogs and advisory blogs. A law firm should stay away from an advisory blog. By its very nature, that type of blog offers legal advice and therefore increases the risk of a malpractice suit. An advisory blog also can inadvertently create a lawyer-client relationship.

    Most law firms put out informational blogs, which present information or offer discussion forums. The information should be presented in a general, nonbiased manner. The line between giving out general information and dispensing legal advice can get blurred very quickly. A blog is a tool that lets you add your voice to the Web dialogue on various topics and to give you a presence on the Internet. It is absolutely not a place to dispense legal advice.

    "A lawyer should take extra care not to establish a lawyer-client relationship - it is no different than engaging in a conversation at a cocktail party or on the golf course," says Pinnington. "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."

    Bloggers and technology experts all agree that a disclaimer statement on a law firm blog is essential. Pinnington says, "You should have a disclaimer on the site - it clearly sets forth the rules of engagement in black and white." Wood adds that a disclaimer is important "both to establish that the blog does not create an attorney-client relationship and that it does not give legal advice."

    A typical disclaimer may read something like this:

    "This blog is made available by this law firm for general information purposes only and to provide a general understanding of the law, not to provide legal advice. Readers of this blog are cautioned that reading the blog does not create a lawyer-client relationship between the reader and this law firm."

    Dennis Kennedy, a St. Louis lawyer who both practices computer law and provides technology consulting services for law firms and corporate legal departments, says, "The safest approach for lawyers is to assume that Web sites are advertising and use appropriate disclaimers. I personally take the approach of stating that my Web site and blog are not intended to be advertisements, but that I recognize that it could be considered advertising and I give the required disclaimers and otherwise comply with the advertising rules."

    Kennedy also points out that law firm Web sites and blogs can be viewed anywhere in any state and in any country. Does this mean other states' ethics rules apply? Kennedy says, "The general consensus today is that law firms want to comply with the ethical rules of every state in which they have offices and every state in which they have lawyers licensed. Some state rules, such as New York's, aggressively take the approach that marketing directed into the state is subject to its regulation. In that situation, firms that actively market to potential clients in states in which they are not licensed will need to consider whether they are required to comply with the rules of those states."

    Avoiding Malpractice

    At Wisconsin Lawyers Mutual Insurance Co. (WILMIC), coverage is provided for professional services rendered. Vice president of underwriting Dennis Marx says professional services are defined as "services rendered to a person or entity in the capacity as a lawyer or notary public."

    In most cases, posting content on a Web site for all to read is not considered to be the provision of legal services, just as other marketing techniques, such as writing an article for a newsletter or magazine, are not considered to be the provision of legal services.

    In some scenarios, however, blog entries could become legal advice. Be careful not to blur that line between providing general information and providing legal advice. 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."

    Marx says WILMIC does not have a problem insuring a law firm that puts out a blog. "If a firm that we insure wants to get into blogging, that's entirely up to those lawyers. My job as an underwriter is to assess their risk, not to tell them how to run their business. We would approach this issue on a firm-by-firm basis, just as we do any other matter. For example, if their blog crosses the line and starts putting out legal advice or could create a lawyer-client relationship with readers, we would discuss it with that firm."

    When blogging, a lawyer should review rules on lawyer advertising and marketing - specifically, Wisconsin Supreme Court Rules 20:7.1, 7.2, 7.3, and 7.4.


    There are bottom-line issues to consider when thinking about a blog. A simple checklist might help:

    • Include a disclaimer.
    • 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.

    If done well, a blog may become a very beneficial tool for your law firm and its readers. It also may get you noticed, especially considering the fact that experts say Google indexes more than eight billion Web pages. But a blog also could get you into trouble. As Kennedy says, "The regulatory waters around Web site ethics have become choppy and unsettled in the last year or so."

    You don't want to get caught up in those choppy waters.