The State Bar of California recently issued Interim Formal Opinion 12-0006, which regulates "blogging" by attorneys and is so broadly worded that it essentially considers anything written by a member of the Bar about anything pertaining to the law to be lawyer advertising. Therefore, all such materials would require disclaimer language stating that they are lawyer advertising. The Committee on Professional Responsibility and Conduct is accepting comments on the proposed opinion until 5 p.m. on March 23, 2015. They should be sent to Angela Marlaud at the State Bar of California, 180 Howard St., San Francisco, CA, 94105, or emailed to angela.marlaud@calbar.ca.gov.
On February 27, 2015, I sent an email to Angela Marlaud regarding this issue and essentially stated the following:
I am a very well-known blogger and I find this proposed regulation extremely troubling for a great many reasons. My articles are considered very thoughtful, well-researched, and are generally well-received in California, throughout the country and abroad. In fact, it is not uncommon for one of my blog articles to be picked up by Bar Associations in various parts of the world. Most recently, my Huffington Post Blog titled "The Power of Empathy" was republished in the Winter 2015 edition of "DR Currents - A publication of the dispute resolution section of the State Bar of Georgia." This is my third time I've had my Huffington Post blog articles republished by DR Currents or vice versa.
As a result of my blog writing, Bob Berlin, the Editor of DR Currents, contacted me initially in 2013 and told me how much he liked my articles and requested that I write an original article for that publication. The article I submitted was titled "When the Law Is Involved, Do Feelings and Notions of Fairness Matter?" and was published in the Summer 2013 edition of DR Currents. Since I felt that the topic was important, I then decided to break it into two separate articles and publish those on my Huffington Post blog. "Do Feelings Matter in Mediation?" and "When the Law Is Involved, Do Notions of Fairness Matter?" were published on July 17, 2013 and July 29, 2013, respectively.
On May 16, 2014, Mr. Berlin sent me the following email: "I just read your article "'Collaborative Divorce' Is Collaborative in Name Only." It's great. May I use it in my next GA Bar Association's newsletter?" That article appeared in the Summer 2014 edition of DR Currents.
In any event, the "Blog" versions of my article describe me as a "Family Law Attorney, Mediator, Collaborative Law Practitioner, Speaker, and Author." My Bio on the Huffington Post states as follows:
"Attorney Mark Baer is recognized as a 'thought leader' in many areas of Family Law for his provocative and forward-thinking ideas on improving the way in which Family Law is handled. As a former litigator who advocates the use of mediation and collaborative law whenever possible, Attorney Baer points out the inherent flaws that exist in litigating Family Law matters, then reveals more creative and less destructive approaches. Utilizing his vast array of information and knowledge, well beyond the law itself, Mr. Baer provides insight on how the dissolution of familial relationships, as typically practiced, leads to less-than-optimal results, both financially and emotionally. He also highlights the difference between 'dispute resolution' and 'conflict resolution' to offer simple ways of achieving a better result for all parties involved including the children.
WHO IS MARK BAER?
Family Law Attorney Mark B. Baer uses a unique, integrative approach which utilizes law, psychology, behavioral economics, neuroscience, economics, philosophy, and other disciplines. An advocate of using consensual dispute resolution processes such as mediation and collaborative law whenever possible, Attorney Baer considers the psychological and financial health of the entire family and assists them in navigating the emotional waters of Family Law. He also helps those who attend his lectures acquire new skills that can strengthen and empower them to better cope with future challenges.
Mark Baer's Family Law practice offers a range of services that pertain to marriage, dissolution of familial relationships (including marriages, domestic partnerships and non-marital relationships involving children), legal separations, parenting plans, time sharing schedules, child support, spousal support, pre-marital agreements, and pre-domestic partnership registration agreements."
My Bio on DR Currents is as follows:
"Mark B. Baer is recognized as a 'thought leader' in many areas of Family Law for his provocative and forward-thinking ideas on improving how Family Law is handled. As a former litigator who advocates the use of mediation and collaborative law whenever possible, he points out the inherent flaws that exist in litigating Family Law matters, then reveals more creative and less destructive approaches. Utilizing his vast array of information and knowledge, well beyond the law itself, Baer provides insight on how the dissolution of familial relationships, as typically practiced, leads to less-than-optimal results, both financially and emotionally. He also highlights the difference between 'dispute resolution' and 'conflict resolution' to offer simple ways of achieving a better result for all parties involved, including the children. Baer was recognized as Southern California Super Lawyer in the family law category in 2012 and 2013, and included as a Top Attorney by Pasadena Magazine from 2010-13."
The DR Currents article, which is a newsletter from the Georgia State Bar, is available online. The articles are virtually the same, whether they were published on the Huffington Post as a blog or in DR Currents as an article. Both are accessible online. For the State Bar of California to regulate the article on the Huffington Post as "Lawyer Advertising," while the exact same article in DR Currents is not deemed lawyer advertising is so very wrong. The description under my name on my Huffington Post blog articles describes what I do for a living and somehow that makes the blog itself advertising? I'm afraid that I must disagree. The description gives credibility to the information contained in the informative article itself. Furthermore, these "blogs" take me a tremendous amount of time to research and write. I do this because I am trying to educate the public and at the same time, I am apparently educating a great many professionals, including members of the California State Bar. The thought that my extremely well received articles that take a great deal of my time to create may somehow be viewed as lawyer advertising by the State Bar of California is so offensive, I can't even begin to describe my feelings. Furthermore, if I have to place a disclaimer indicating that they are lawyer advertising, it discredits the article itself.
I'm afraid that the proposed regulation will have a very chilling effect on blogging, much of which provides a means of conveying valuable information to a great many people. In addition, I don't get compensated for the immense amount of time I spend on my blog articles and to state that because I allow people to know what I do for a living and that I am available to take on new clients, that I am advertising in the blog itself is outrageous.
As far as the distinction between allowing comments or not allowing comments is concerned, I think the Bar should know that it takes a great deal of time to monitor comments in order to determine which should post and which should not post. In fact, Huffington Post stopped monitoring comments because of the amount of time involved in doing so and instead began collaborating with Facebook in that regard. Facebook essentially "monitors" the appropriateness of the comments at this point.
The distinction between a stand alone blog (such as the Huffington Post) and a blog on the website directly also makes little sense. I am fortunate enough to have been asked by Huffington Post, Divorce Magazine and many others to submit blogs on their sites. To somehow state that blogging on my own website makes it more like "lawyer advertising" than blogging elsewhere makes no sense. In fact, my blogs on Huffington Post and elsewhere have more credibility because they are not self-published. If they contain the same information, description and bio, what makes them any less "lawyer advertising"?
As far as testimonials are concerned, I have included them in some of my articles in order to make a point. In fact, the following testimonial was included in my article titled "'How To Select The Best Mediator' Is a Must Read for Everyone": "Mark is truly an amazing mediator and committed to doing what is in the best interest of all parties. His ability to capture the essence of a conflict and move people to a place of empathy and compassion so as to reduce financial costs is beyond impressive. As in all professions, there are good and bad practitioners; Mark is a good one and I highly recommend you consult with him first for your family law matters." That Blog article was extremely well-received and was shared by a great many attorneys, mediators and Bar Associations. If it was lawyer advertising, please explain why something advertising me was shared by so many of my colleagues and bar associations?
If the Bar does decide to require certain disclaimers in lawyer blogs, how does that impact previously published blogs over which the attorney does not have editorial control? What if Huffington Post, for instance, refused to edit all of my prior blogs and include such a disclaimer?
Furthermore, what if Huffington Post found such disclaimers inconsistent with the news and information it publishes because it diminishes it to a form of advertising and then opts not to allow attorneys who need to include such disclaimers to publish blogs? Since I am a member of the State Bar of California, I would no longer be permitted to be a Huffington Post blogger, but if I moved to another state, I could? This also makes no sense.
I must agree with much of what was stated by AVVO general counsel Josh King. In fact, I had the pleasure of hearing him speak at a recent ABA Family Law Section meeting on the topic of lawyer blogging and what is or isn't appropriate. The program was titled "Legal Ethics of Social Media."
I also sent an email to the Huffington Post and will be contacting others because I firmly believe that the State Bar of California is wrongfully interfering with free speech with its proposed regulation on blogs written by members of the State Bar of California. I wouldn't fault the Huffington Post and other media for not publishing articles written by members of the State Bar of California that pertain to legal issues because they would have to include a disclaimer that they are lawyer advertising. How much credibility would blogs written by attorney have if they always included the following disclaimer? "In some jurisdictions, including California, this blog article is considered lawyer advertising. The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Any listing of an attorney does not constitute a recommendation of the attorney. Before hiring any attorney, you should investigate the attorney's reputation and qualifications."
Heaven help the State Bar of California if I lose my position as a Huffington Post Blogger because of this asinine proposed regulation because I will without question take the Bar to court. How dare the State Bar of California trivialize my blog articles and the time and effort involved in creating them! How dare the State Bar of California potentially interfere with my position as a Huffington Post Blogger, among other things! While I may be a mediator and a peacemaker, I'm afraid that if the State Bar of California enacts its proposed regulation, it is a matter of broad importance and would need to be decided in a court of law. Are you ready for a legal battle with me, State Bar of California? I promise you that l will take you to task.