Searching for information on the Internet has become commonplace. People use search engines to locate sources for goods and services of all descriptions, including legal services. People also use the Internet as a source of information to educate themselves about topics and issues that concern us in our personal lives and professions. Much of the time, when we receive our search results, the list contains several blogs. This primarily occurs because blogs simply have more words in them, more content, for a search engine to find. As a result, blogs have become a tool for lawyers to use in making information about themselves, their knowledge, their opinions and their areas of practice available to the public, including potential referral sources and prospective clients. The American Bar Association (ABA), has conducted a vote for each of the last five years to select the top 100 law "blawgs". The results are published in the ABA Journal.

So, is a blog published by a lawyer an advertisement under the Nevada Rules of Professional Conduct? The state bars in many states and the ABA have been struggling with this issue. The State Bar of Nevada would say that it is, if the blog is intended to generate pecuniary gain for an attorney or law firm. It seems as if most are so intended. If a blog is an advertisement, then the blogger must comply with the Nevada Rules of Professional Conduct, which would include complying with the rules governing advertising. An attorney may decide to start a blog for other reasons – he or she likes to write or wants to provide a resource for the community – but generally, the primary purpose of a blog is to develop business. Of course, an attorney could produce a blog that is directed towards other attorneys. In that case, it would arguably not be directed to prospective clients and not be subject to the advertising rules. However, that seems like a fine line to draw and erring on the side of caution could be the better approach.

If a blog is an advertisement, what does this mean in practical terms? The State Bar of Nevada has a compilation of the lawyer advertising rules on its web-site, http://www.nvbar.org/content/rules-lawyer-advertising. A brief perusal of those rules indicates that the traditional rules of confidentiality, attorney-client privilege and truthfulness that govern lawyers apply. Under RPC 1.6(a) (Confidentiality of Information), a lawyer may not reveal information related to representation of a client unless the client gives informed consent or one of the other limited exceptions applies. All information relating to the information of the client is made confidential by RPC 1.6, even if it is not adverse to the client. RPC 1.18 (Duties to Prospective Clients) points to disclaimers that should be considered by bloggers. RPC 7.1 (Communications Concerning a Lawyer's Services) provides, among other things, that a lawyer has a duty not to make false or misleading communication about the lawyer or the lawyer's services. RPC 7.2 (Advertising) which addresses the method and content of advertisements also applies. Currently, the State Bar does not require compliance with RPC 7.2A (Advertising Filing Requirements) for websites.

Are any changes to the advertising rules on the horizon? The ABA Commission on Ethics 20/20 concluded last year that the existing ABA Model Rules of Professional Conduct, on which Nevada's rules are based, should accommodate the increasing use of electronic communications by the legal profession without any significant modifications. However, it also concluded that lawyers need more guidance regarding how to use on-line business development tools consistent with the rules. Proposed amendments to Rules 1.18 (Duties to Prospective Clients), 7.2 (Advertising) and 7.3 (Direct Contact with Prospective Clients) will be considered in August, 2012, at the ABA Annual Meeting. At this time, the State Bar of Nevada has no plans to revise any rules applicable to blogs, but the Rules noted above make interesting reading for those considering starting a blog.

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Anne E. Padgett

Concentrating in General Insurance Defense and Insurance Coverage Litigation with emphasis in Automobile Liability, Premises Liability, Construction Defect, Personal Injury, Product Liability, Defense of Bad Faith Claims Against Insurers, Litigation and Cargo Claims, Asbestos Litigation, and Construction Litigation.

Experience

Ms. Padgett is admitted to practice before all state and federal courts in the State of Nevada. She is also licensed to practice in the States of Oregon and Arkansas. She joined the Las Vegas office of McCormick, Barstow, Sheppard, Wayte & Carruth LLP in June, 2005.
Ms. Padgett has practiced insurance defense, including automobile liability, premises liability, products liability and construction defect litigation, in the Las Vegas area since October, 1998. In her practice, she has defended private individuals and clients from a wide range of industries, including large corporate entities and small businesses. She has defended interstate motor carriers and household goods shippers against personal injury claims and cargo claims. Ms. Padgett has represented insurers in uninsured motorist and bad faith litigation.

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