Thursday, November 27, 2003

Standards of Practice and the Permissibility of Blawg Comments on Attorneys' Legal Blogs


Standards of Practice and Blawg Comments

Here is the Legal Question:

If an attorney permits comments to be posted to his blog by readers of that blog, is he thereby violating the standards of practice of his bar association?

On just that question, Alexander Hartmann's blog jurabilis - bLAWg points us to a vigorous fax and blog exchange between two German lawyers at Udo Vetter's German "Law Blog" at udoslive.blogspot.com (November 27, 2003).

According to the exchange as posted by Vetter, German attorney Ute Rossenhoevel sent Vetter a fax requesting him to take a stand on the question of whether his allowing comments to his blog was in accord with the existing practice standards for attorney advertising in Germany. While admitting that these standards had been relaxed in recent years, Rossenhoevel refers to two German court cases dealing with attorney advertising, as follows:

Guest Books on Attorney Websites - Germany

1. Decision of the Regional Court of Appeals of Nuremberg (Oberlandesgericht Nuernberg), Germany, March 23, 1999, (Aktenzeichen 3 U 3977/98) - a decision involving the propriety of a "guest book" on the website of an attorney. The website JurPC of Professor Maximilian Herberger has created three "headnotes" for this German case which can be read here in German. Below is my unofficial unsanctioned English translation of those headnotes:

1. The operation of a homepage by an attorney is advertising within the context of § 43 of BRAO [BRAO, abbreviation for German Bundesrechtsanwaltsordnung, the German Federal Regulations for Attorneys]; the question of whether "advertising" is present is to be decided pursuant to objective criteria and not according to the ideas or intentions of the homepage operator.

2. A guestbook which is part of a homepage is part of the advertising function which attaches to the homepage itself.

3. A guestbook opens up the possibility for positive statements to be published on the homepage of the attorney about his professional activities; the permissible border of objective information [which can be published about the practice as permissible "advertising"] is thereby overstepped, regardless of the issue of whether a particular statement made [in the guestbook] is true or not.

Guest Books on Attorney Websites - Hungary

It is interesting in this regard to note that the Bar Association of Hungary has also issued practice standards for lawyers which prohibit guest books on attorney websites.

Internet Information on Attorney Websites - Germany

2. Decision of the Federal Constitutional Court (Bundesverfassungsgericht) of Germany, September 12, 2001 (Aktenzeichen: 1 BvR 2265/00) - concerning advertising text on a law firm internet page.

This decision is important because it was handed down by the German Federal Constitutional Court, which is the supreme court in Germany for constitutional questions. According to this case, the Federal Constitutional Court held that the regulatory bar authority could not prohibit factually true professionally-relevant text information on attorney websites since such expressions were guaranteed by Article 12 Section 1 of the German Constitution (Grundgesetz), a section which guarantees occupational freedom. Only information which was "misleading" could be prohibited by the regulating bodies.

Unresolved through that case of course is the question of whether a factually true "testimonial" or even the "possibility" of such a testimonial as a blog comment by a 3rd party is permissible on a blawg.

Propriety of Specific Legally-related Domain Names

I might add here another related internet case, the decision of the German Federal Court of Justice (Bundesgerichtshof or abbreviated BGH, Beschluss vom 25.11.2002 AnwZ (B) 41/02) involving the use of the domain name "www.presserecht.de" (Presserecht = Law of the Press) by an attorney. The case was also discussed in a publication of the Federal Bar Association of Germany. Essentially, the court held that an attorney using such a domain name and in fact presenting information on press law, would not be misleading the public into thinking he was the only attorney in this area of law or that he had some kind of monopoly of information on press law. Additionally, the court held that a particular domain name can only be granted once - this was in the nature of the internet - and it was not an unfair advantage that the priority principle "first come, first served" prevailed.

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