As I often say, if telephones were introduced today, there’s no way that the use of telephones by lawyers would be approved under today’s ethical and regulatory environment for lawyers. Just think of all the horrible things that can happen when lawyers use telephones.
Like faxes, emails, and websites before them, the “new technology” of blogging has seemed to flummox bar regulators who are unfamiliar with what blogs actually are.
The (over)reaction to blogs continues to surprise me. Let me say this as simply as I can. Blogs are simply one kind of website. The rules on lawyers’ use of websites have actually reasonably clear and well-settled since about 1997. At least until the publicity blogs have received in the last two years. Since then, as I have said before, it has really become impossible to determine how blogs will be treated or to predict how regulators will deal with blogs, as the recent New York rules illustrate.
That said, there’s been a modest movement toward more reasonable thinking about blog regulation since the New York regulators listened to comments to their proposed rules and made a few changes, even though there’s no consensus how even those changes apply to blogs.
Last night, I saw Carolyn Elefant’s post about a New Jersey law firm dropped its plans to start a blog because its malpractice carrier, the Chubb Corp., indicated that it might not insure the blogging activity.
I must admit that this came as a surprise to me. I almost posted about the story last night.
This morning, I got a call from Heather Havenstein, from ComputerWorld, asking me for some comments on the story. Her story, “Insurance company refuses to cover law firm’s blog,” has appeared already on the online edition of MacWorld.
The quote she used from captures the heart of my perspective on this story:

However, [Kennedy] said these types of attempts to impose new types of restrictions on blogs likely occur ‘when people aren’t that familiar with the technology and think it is somehow completely new and different. Really blogs are just a form of Web pages. What you’re doing is not different than if you are speaking in public or writing an op-ed piece.’

Or using a website as lawyers have done for at least the last 12 years. Or talking to someone on a telephone.
While I am convinced that blogs can be a vehicle to greatly enhance communications with clients and the public, I am not convinced that, at root, blogs present any new issues that require different treatment under ethical and regulatory rules than any other prior communication technology.
I also suspect that a 5 or 10 minute conversation with a malpractice insurance carrier would alleviate any reticence or concern about covering blogs. It might, however, raise some concerns about whether malpractice carriers want to cover the use of telephones by lawyers. Heh.
My rule of thumb on these issues is to simply substitute the word “telephone” for “blog” and then see if there is any new issue raised by blogs that aren’t raised by telephones. I haven’t found any yet – in twelve years off thinking about these issues since I first started my website.
Kevin O’Keefe also has his usual great perspective and analysis on this issue here. Careful readers might guess that Kevin and I have had conversations about this issue over the years where we’ve both used the telephone analogy.
[Originally posted on DennisKennedy.Blog (]
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