For the benefit of bar association types and judges, let’s get something straight off the top.  The word “blog” is short for web log.  The word “blawg” is a bastardization of blog meaning a web log that focuses in law. It’s a bit cutesy, but it differentiates blogs about babies and kittens from blogs about the law.

If a writing is self-promotional, it is marketing and not a web log, blog or blawg (or any other variation on the theme).  Stop calling them all blogs. They’re not.  And when the decision is finally handed down in Horace Hunter’s case, it will not be a decision about blogs, but a decision about something he calls “news” on his website, and a “blog” when he argues his entitlement. It’s marketing. It’s no blog.

Via Carolyn Elefant,

As the saying goes, bad facts make bad law. And there’s going to be some very bad law for lawyer blogs indeed if Virginia small firm lawyer Horace Hunter loses his First Amendment challenge to the Virginia Bar’s attempt to require the firm to include certain disclaimers on its blog.

Don’t get me wrong – I’d love to see Hunter pull this one out.

Unfortunately, the law and facts are still on the Virginia Bar’s side. According to the Washington Post, the Virginia Bar alleges that Hunter violated Virginia’s ethics rules by failing to include on his blog a disclaimer stating that the results reported are specific to the unique facts of the case and do not guarantee favorable results in other future cases.

There was no claim of deception that caused the Virginia bar to go after Hunter, but only a routine audit.  By sheer kismet, he’s become the new first amendment hero, fighting the good fight against putting a disclaimer on his marketing that past results do not guarantee similar results in the future. 

But here, I don’t find this disclaimer – or at least some kind of caveat stating that the cases are “representative” matters – entirely unreasonable or unduly burdensome on the First Amendment.  Without any type of disclaimer specifying that a listed case is representative or not a guarantee of results, lawyers can “cherry-pick” the cases that they seek to list on their website giving the impression that the lawyer has only enjoyed a string of victories and is capable of winning any case that comes his way.

Or, lawyers can just lie about their results. Losses miraculously become wins, huge wins, if that’s how a lawyer chooses to present them. The reader wouldn’t have a clue.  And then there’s the problem with disclosure, as lawyers who write about themselves tend to forget that there’s another person’s life involved in their self-promotion.  From the Washington Post;

The charge, filed in March, also says Hunter blogged about information that would be “embarrassing” or “detrimental” to his clients, including using a pseudonym to discuss the case of a juvenile client. Hunter failed to show that he had obtained his clients’ consent to talk about the cases, the charge said. Hunter calls the claims “frivolous” and maintains that the matters discussed on his blog are public, and that he had the permission of the juvenile’s parents to talk about the case.

But it was good for Hunter and his marketing scheme, and Hunter, the person who benefitted from this conduct, didn’t see a problem.  Really, isn’t the person who’s gaining the self-promotional benefit in the best position to assess the harm done others?

It would be one thing if Horace Hunter fought for his free speech rights based upon the nature of his peculiar choice of content.  While neither Carolyn nor I see any real problem with a disclaimer when the content is all about past results (which are hopefully true, or that raises a separate issue of deceptiveness). And I have long had significant issues with any lawyer happy to sacrifice his client’s privilege and privacy in order to promote himself.  Horace Hunter’s approach to the internet has some very real issues, and the bar’s case against him hardly strikes me as overly burdensome.

But, that’s not what Hunter is fighting for.

Trouble is, Hunter has made this case about more than just website disclaimers, but about blogging.  Here, if the Virginia Bar finds that Hunter’s news feed qua blog is an advertisement and therefore requires disclaimers, mark my words, that decision will be construed broadly to encompass even legitimate blogs that discusses substantive legal issues. A blog that analyzes legal issues or summarizes recent cases is no more of an advertisement than a law review article or op-ed piece, neither of which must be tattooed with disclaimers.  To impose disclaimer requirements on blogs and not any other types of scholarly or informational legal resources diminishes their credibility and in so doing, violates the First Amendment.

That’s right, Horace Hunter is fighting for me, for my blawg, as if there is any similarity between what I do here and what he does.  Thanks, but no thanks.  This has nothing to do with my blawg, or blawging, or blogging.  Hunter is fighting for the right to market himself, and nothing more.  Calling his tripe a blog doesn’t make it so, but the issues has been framed, discussed and argued as one involving the whole of blogging.

Hard as it may be to imagine (kidding here, folks), those not engaged in the blawgosphere have little if any understanding of blawging.  We’re all tossed together as “those lawyers on the internet,” and the distinction between substantive commentary and self-aggrandizement gets lost in the ether. 

And many quasi-or faux-blawgers don’t help matters, as they are busy doing what Hunter is doing, promoting themselves while trying to appear as if their writings are legitimate thought. Without a real feel for the deal, you wouldn’t know that they’re self-promoters like Hunter, just more artful in their presentation.

Whose free speech rights rest in the hands of Hunter? Mine do.  So does Joseph Scura, a New Jersey lawyer who wrote his first blog post entitled “Two Years in Solo Practice.”  This violates every rule of social media marketing, since it’s absolutely critical for a lawyer with only two years under his belt to conceal that fact.  But Scura makes truth his headline.  And more:

People seem to like checklists on the internet, so if I had to distill what I’ve learned (still learning) into a few morsels (that I hope to remember)  they would be:

• Giving a crap goes a long way.  It’s not an outright substitute for experience but it can certainly close   the gap. 


• No matter how smart you are, you need someone to turn to for questions.  Luckily, CDLs are amongst the most generous and collegial in the profession.


•  It’s always about the client first.  Just do good work and your efforts will be rewarded. 


• Don’t expect a “thank you”, but if you get one, be grateful and you can be sure you earned it.


• Be wary of off the rack advice – (paraphrasing) Alan Dershowitz, Letters to a Young Lawyer

Better still, Scura’s post, which strikes me as more of an anthology written for his own benefit than anything a potential client would care about, talks about his path from n00b to second year:

This is by no means a how-to-guide to starting a practice.  This is the way I did it, and I’m not saying it’s the best way, or even a good way…just a way. 

What?  Is he not setting himself up as a legal rainmaker consultant, selling his magic sure-fire methods to the unwary?  Nope, just sound choices he’s giving away for free.  While my blawg will survive a bad decision in Horace Hunter’s case, it would be a terrible shame for Joseph Scura’s wonderful new blawg to suffer for it.