Around the Blawgosphere: Lawyer Bloggers and Disclaimers; The 'Ten Crack Commandments' in Practice

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Legal Blogging v. Advertising

Late last week, the Virginia State Bar ruled that Richmond, Va., lawyer Horace Hunter, who posts at Richmond Criminal Defense News, sometimes about his own cases, must add a disclaimer to his blog to indicate that it’s advertising. Some legal bloggers are trying to figure out the long view.

Chicago-based lawyer marketing consultant Gyi Tsakalakis writes at Lawyerist with frustration that he doesn’t think ethics rules make it clear enough for lawyers to always know what is or isn’t considered ad content, and he lists some hypothetical descriptions of blog posts for which he doesn’t know if a disclaimer would be called for. “To me, trying to distinguish between advertising and marketing communications, and all the other types of lawyer communications is a spiral into absurdity,” Tsakalakis writes. “And requiring lawyers to try to decide whether their communications should or should not have disclaimers is equally preposterous.”

Washington, D.C. solo and My Shingle blogger Carolyn Elefant noted in the comments of the post a case in which an Illinois court ruled on a distinction between free speech and advertising: It determined a junk fax to be an ad “because the newsletter was ghostwritten and the law firm logo took up something like 60 percent of the page.”

Manhattan solo Scott Greenfield says that Hunter’s content is clearly advertising—and that by asserting it was a blawg did Virginia legal bloggers a bad turn. “The core problem, and one that has fallen through the cracks in much of the discussion about this sordid case, is that this wasn’t a blawg,” Greenfield wrote at Simple Justice. “Hunter says otherwise, but Hunter is wrong. And with his error, so goes all Virginia blawgers down the tubes. “

The Notorious B.I.G.’s Sage Rhymes

While Springfield, Mass., lawyer V. Van Johnson, “does not condone illegal drug dealing” and in fact finds “the practice reprehensible,” he does like Life After Death, rapper Notorious B.I.G.’s last studio album. This prompted Johnson to analyze the value of the business / legal advice Biggie puts forth in the song “Ten Crack Commandments,” taking a critical look at each “commandment” in a post at his new blog, Rip Van Legal. Some of the commandments and Johnson’s analysis:

3. Never trust no-bo-dy. “Except your lawyer,” Johnson wrote. “If you can’t trust your lawyer, get a new one.”

8. Never keep no weight on you. “At first blush, this could appear to be specific to drug dealing,” Johnson wrote. “But, let’s unwrap this one before we move on. If we replace ‘no’ with ‘unnecessary’ and consider the implications of good supply chain management, the advice becomes applicable to many businesses. Keeping the minimum amount of inventory on hand to meet your customers’ needs is good for cash flow.”

9. If you ain’t gettin’ bags stay [away] from police. “It doesn’t really matter what business you’re in—if the authorities come knocking, most people will fold like a cheap church suit,” Johnson wrote. “Assume that anyone you’re dealing with will sell you out if the need arises. If you’re the one folding and you’re going to talk to the police or any government official in the context of an investigation, speak to your lawyer first. If they hit you with that ‘only guilty people need lawyers’ stuff, tell them I said only fools think that only guilty people go to jail.”

Hope and Spare Change

Above the Law blogger Elie Mystal complains that what President Barack Obama is touting as new programs to reduce some students’ loan payments (noted by the New York Times and other news outlets) are not in fact new. Obama is “changing the dates on programs already in place and is hoping that both the media and the public are too stupid to notice,” Mystal wrote.

What students want, Mystal writes, is loan forgiveness and the ability to discharge student loans in bankruptcy, not a 5 percent drop in the income-based repayment percentage. “And, mainstream media, that drop is not new. As [Melody Barnes, director of the Domestic Policy Council] just explained, the IBR percentage was always coming down. Obama just accelerated the timing.”

A Taxing Question

At Taxgirl, Philadelphia lawyer Kelly Phillips Erb noted a Facebook and Twitter survey she conducted with her readers this week: Would you apply for a job if you knew that you had to make your tax return public?

Fifty-four percent of those who responded to Erb said that they would, which isn’t what Erb expected.”Taxpayers tend to be very guarded about their financial information,” she wrote. “I’ve often said that it’s easier to get people to reveal their weight, the number of sexual partners they’ve had or their IQ than it is to get them to tell you how much they paid in taxes.” Still, for the past 40 years, political candidates have been called upon to release their federal individual income tax returns, and most do, even though the IRS is prohibited from releasing taxpayer information without authorization. Erb notes that Republican presidential candidate Rick Perry has released his tax return and has called on fellow GOP candidate Mitt Romney—who, unlike Perry, is decidedly “one of the 1 percent” who “we all love to hate right now”—to do the same.

While Erb doubts that voters care much about how “everyman” a candidate is when it comes time to vote, she thinks Perry’s strategy isn’t a bad one. “The timing is impeccable—right in the middle of a bleak economy, a debate about tax reform and a flurry of global protests over perceived financial inequities.”

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