Legal Ethics and Website Marketing in 2016Larry BodineEditor, The National Trial Lawyers

Today’s topics: 4 casesThe Power of Blogging•Commercial Speech – Dex v. Seattle•Blogging about cases – Hunter v. Virginia•Blogging about clients & judges – In re:

Peshek•Lying online leads to a$350,000 award againstclient - Blake v. Giustibelli

Clients Go Online to Find Lawyers

Source: Hinge Marketing 2015

High Growth Firms Focus on Blogging

Source: Hinge MarketingHeintz Marketing

Free Speech Right to Blog• 1st Amendment

freedom of speech – opinions, news, law, politics

• Commercial speech

• Speech that is false or misleading

• High protection: Abridging subject to strict scrutiny

• Can be regulated, but subject to intermediate scrutiny

• No protection

Commercial speech•An advertising format•Reference to a specific product•Economic motivation for publication

--Dex Media West, Inc. v. Seattle (9th Cir. 2012)

Regulating Commercial SpeechRules of Professional Conduct focus on:

•Discussions of results obtained •Comparisons to other attorneys •Testimonials and recommendations •Superlatives•Statements that imply the ability to get

results •Real-time, electronic solicitation - email

Blogging about your own casesHunter v. Virginia State Bar (Va. S.Ct, 2013)• Richmond,

VA, criminal defense lawyer

• Posts about cases he won

State Bar Charges•Violates Rule 1.6 –“Disseminating client

confidences” obtained in the course of representation without consent▫Info revealed in public judicial proceedings▫Interpretation violated the First

Amendment and dismissed the charge•Violates 7.1, 7.2 – Advertising without

disclaimers - inherently misleading▫Potentially misleading commercial speech

that the state bar may regulate

Commercial speech 4 Ways1. Mix of political

commentary and self-promotion

2. Non-interactive – no commenting

3. Contact Us form

4. Blog on law firm’s commercial website – not on separate site

• Doesn’t post disclaimers

• Stops blogging about his own cases

Blogging about clients and judgesMatter of Kristin Ann Peshek (IL S.Ct, 2010)•Non-public

client confidence

•Called a judge “A total asshole” and “Judge Clueless” – protected opinion?

The violations charged & upheld• Rule 1.6(a) – revealing client confidences• Rule 1.2(g) - failing to call upon a client to

rectify a fraud that the client perpetrated on the court

• 8 .4(a)(5) - conduct that is prejudicial to the administration of justice

• Illinois Supreme Court Rule 770 - conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute

Cannot express negative opinion about judges

Clients Lie in a Review about a Lawyer•Blake & Birzon v. Ann-Marie

Giustibelli (Case No. 4D14-3231, FL 4th District Court of Appeal, Jan. 6, 2016)

•Smears posted on Avvo & online reviews

•$350,000 punitive damages affirmed

•Defamatory factual allegations that were provably false

Ann-Marie GiustibelliDivorce AttorneyPlantation, FL

This lawyer represented me in my divorce. She was combative and explosive and took my divorce to a level of anger which caused major suffering of my minor children. She insisted I was an emotionally abused wife who couldn’t make rational decisions which caused my case to drag on in the system for a year and a half so her FEES would continue to multiply!! She misrepresented her fees with regards to the contract I initially signed. The contract she submitted to the courts for her fees were 4 times her original quote and pages of the original had been exchanged to support her claims, only the signature page was the same. Shame on me that I did not have an original copy, but like an idiot . . . I trusted my lawyer. Don’t mistake sincerity for honesty because I assure you, that in this attorney’s case, they are NOT the same thing. She absolutely perpetuates the horrible image of attorneys who are only out for the money and themselves. Although I know this isn’t the case and there are some very good honest lawyers out there, Mrs. Giustibelli is simply not one of the “good ones[.]” Horrible horrible experience. Use anyone else, it would have to be a better result.

Not libel

This lawyer represented me in my divorce. She was combative and explosive and took my divorce to a level of anger which caused major suffering of my minor children. She insisted I was an emotionally abused wife who couldn’t make rational decisions which caused my case to drag on in the system for a year and a half so her FEES would continue to multiply!! She misrepresented her fees with regards to the contract I initially signed. The contract she submitted to the courts for her fees were 4 times her original quote and pages of the original had been exchanged to support her claims, only the signature page was the same. Shame on me that I did not have an original copy, but like an idiot . . . I trusted my lawyer. Don’t mistake sincerity for honesty because I assure you, that in this attorney’s case, they are NOT the same thing. She absolutely perpetuates the horrible image of attorneys who are only out for the money and themselves. Although I know this isn’t the case and there are some very good honest lawyers out there, Mrs. Giustibelli is simply not one of the “good ones[.]” Horrible horrible experience. Use anyone else, it would have to be a better result.

Not libel

This lawyer represented me in my divorce. She was combative and explosive and took my divorce to a level of anger which caused major suffering of my minor children. She insisted I was an emotionally abused wife who couldn’t make rational decisions which caused my case to drag on in the system for a year and a half so her FEES would continue to multiply!! She misrepresented her fees with regards to the contract I initially signed. The contract she submitted to the courts for her fees were 4 times her original quote and pages of the original had been exchanged to support her claims, only the signature page was the same. Shame on me that I did not have an original copy, but like an idiot . . . I trusted my lawyer. Don’t mistake sincerity for honesty because I assure you, that in this attorney’s case, they are NOT the same thing. She absolutely perpetuates the horrible image of attorneys who are only out for the money and themselves. Although I know this isn’t the case and there are some very good honest lawyers out there, Mrs. Giustibelli is simply not one of the “good ones[.]” Horrible horrible experience. Use anyone else, it would have to be a better result.

Not libel

This lawyer represented me in my divorce. She was combative and explosive and took my divorce to a level of anger which caused major suffering of my minor children. She insisted I was an emotionally abused wife who couldn’t make rational decisions which caused my case to drag on in the system for a year and a half so her FEES would continue to multiply!! She misrepresented her fees with regards to the contract I initially signed. The contract she submitted to the courts for her fees were 4 times her original quote and pages of the original had been exchanged to support her claims, only the signature page was the same. Shame on me that I did not have an original copy, but like an idiot . . . I trusted my lawyer. Don’t mistake sincerity for honesty because I assure you, that in this attorney’s case, they are NOT the same thing. She absolutely perpetuates the horrible image of attorneys who are only out for the money and themselves. Although I know this isn’t the case and there are some very good honest lawyers out there, Mrs. Giustibelli is simply not one of the “good ones[.]” Horrible horrible experience. Use anyone else, it would have to be a better result.

Not libel

This lawyer represented me in my divorce. She was combative and explosive and took my divorce to a level of anger which caused major suffering of my minor children. She insisted I was an emotionally abused wife who couldn’t make rational decisions which caused my case to drag on in the system for a year and a half so her FEES would continue to multiply!! She misrepresented her fees with regards to the contract I initially signed. The contract she submitted to the courts for her fees were 4 times her original quote and pages of the original had been exchanged to support her claims, only the signature page was the same. Shame on me that I did not have an original copy, but like an idiot . . . I trusted my lawyer. Don’t mistake sincerity for honesty because I assure you, that in this attorney’s case, they are NOT the same thing. She absolutely perpetuates the horrible image of attorneys who are only out for the money and themselves. Although I know this isn’t the case and there are some very good honest lawyers out there, Mrs. Giustibelli is simply not one of the “good ones[.]” Horrible horrible experience. Use anyone else, it would have to be a better result.

LibelAllegations that the lawyer

falsified a contract. These are factual allegations, and the evidence showed they were

false.

Takeaways•Freely discuss politics, legislation and the

law•If it is commercial speech, it is subject to

rules of professional conduct•Use disclaimers when blogging about

your cases•Do not reveal client confidences online•Do not call judges bad names•Do not make defamatory factual

allegations that are provably false

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