Podcast: Tribute Bands

This month on the Business Entertainment Sports and Technology Law Podcast, we pay tribute to those who pay tribute…to their favorite bands. Join ARC Law Group partner Mark A. Pearson and attorney Ben Shaw as they look at the legal issues facing tribute bands like Dread Zeppelin (Led Zeppelin), No Way Sis (Oasis) and Purple Reign (Prince).  Find out how the landscape of tribute bands is creating some interesting debates over copyright and trademark issues, and learn why these acts are becoming so popular. Plus, play along with Mark and Ben on “Tribute Band or Original Artist” (send us a tweet with your guesses to @ARCLawGroup).

There are any number of tribute bands playing live tonight, and we highly recommend checking one out wherever you live.  If you want more info on the acts mentioned on the podcast you can find out tour dates and schedules events at these links: Petty Theft, Unauthorized Rolling Stones, Stung, Brit Floyd.

For more from NPR on the legal battle over Frank Zappa's rights click here.

If you have any questions regarding the content of this podcast or would like to pose a question to be answered in an upcoming podcast email us at [email protected].

You understand and agree that listening to this podcast does not in any way create or establish an attorney-client relationship between you and any ARC Law Group attorney. You should recognize that the information provided in this podcast is provided for your general information and should not be relied on as legal advice and is not a substitute for direct consultation with an attorney about a specific legal problem.

Related articles Podcast: 2014 Academy Awards Podcast: Franchising Podcast: Copyright Ownership vs Right of Publicity Podcast: Live Performance Issues Podcast: Blurred Lines

 Podcast: 2014 Academy Awards

This month on the Business Entertainment Sports and Technology Law Podcast, we hit the red carpet with our 2014 Academy Awards Special. Join ARC Law Group partner Mark Pearson and movie reviewer Chris Bollini for a discussion on this years’ Oscar® winners and some recent legal issues related to the movie industry.  Plus, Chris talks about critics who make movies and tells us why Renee Zellweger doesn’t regert her run in with Leatherface.

Mark A. Pearson & Chris Bollini Talk Movies

In honor of Hollywood, the music on this month’s podcast is courtesy of Los Angeles’ own Perfect Beings.  The recently formed Prog-rock ensemble just dropped a wildly popular album that you can download on iTunes or Amazon.

 

You can learn more about Chris Bollini and his movie reviews on KSRO Radio or Breathe Radio.com's Silverman Show. 

 If you have any questions regarding the content of this podcast or would like to pose a question to be answered in an upcoming podcast email us at [email protected].

You understand and agree that listening to this podcast does not in any way create or establish an attorney-client relationship between you and any ARC Law Group attorney. You should recognize that the information provided in this podcast is provided for your general information and should not be relied on as legal advice and is not a substitute for direct consultation with an attorney about a specific legal problem.

Related articles Podcast: Literary Publishing Podcast: CLA Music Business Seminar 2014 Podcast: Music Licensing Podcast: Live Performance Issues Podcast: The Beastie Boys v Goldie Blox Podcast: Blurred Lines

 Podcast: CLA Music Business Seminar 2014

This month on the Business Entertainment Sports and Technology Law Podcast, we get you ready for the upcoming California Lawyers for the Arts Music Business Seminar. Join ARC Law Group partner Mark Pearson and clerk Ben Shaw as they discuss the 31st annual event to be held this month at Boalt Hall on the UC Berkeley campus.  The event includes panel discussions, live music and networking opportunities for anyone interest in the music business.

CLA MBS 2014

Plus, we try and unravel the mystery of the San Francisco Bay Bridge Troll with filmmaker Megan McHugh.  Megan and her company Art Curved Straight recently finished a documentary project chronicling the infamous Bridge Troll. 

Is the Troll real? Listen in to find out.

 

The music on this month’s podcast is courtesy of bay are trio, Nattergal, and is featured in the Art Curved Straight documentary Demolition Troll. 

We also heard from RVSQ and Steep Ravine, both of which are featured artists at this year's CLA Music Business Seminar. 

You can learn more about Megan and Art Curved Straight by visiting their website www.artcurvedstraight .com. 

Find out about where this month’s bands are playing and where you can buy their music by visiting:

Steep Ravine

RVSQ

Nattergal

If you have any questions regarding the content of this podcast or would like to pose a question to be answered in an upcoming podcast email us at [email protected].

You understand and agree that listening to this podcast does not in any way create or establish an attorney-client relationship between you and any ARC Law Group attorney. You should recognize that the information provided in this podcast is provided for your general information and should not be relied on as legal advice and is not a substitute for direct consultation with an attorney about a specific legal problem.

Related articles 21st Century Musician: Making A Living Making Music

 Podcast: The Beastie Boys v Goldie Blox

This month on the Business Entertainment Sports and Technology Law Podcast, ARC Law Group partner Mark A. Pearson and Podcast Managing Editor Ben Shaw present a special end-of-year podcast discussion about the marketing backlash against one of the hottest toys of the 2013 holiday season. Recently ranked as the top selling toy on Amazon.com, Goldie Blox’ “Goldie Blox and The Spinning Machine” saw a big surge is sales following the release, and subsequent controversy, of an online video featuring a reworking of the 1987 Beastie Boys hit song “Girls”.

Did Goldie Blox commit indefensible copyright infringement by using “Girls” without permission? Are the Beastie Boys being hypocritical by disputing the use of their song? We try and answer these questions as well as give you a look into the issue of Fair Use and Parody as a defense to copyright infringement.

Let us know what you think about this issue by posting a comment on this blog or by visiting us of Facebook or Twitter.

Editors Note: Unfortunately, we cannot show you the Goldie Blox video (with the song) as it has been removed from the web.  However, here is a clip of the video without the song, and a link to an interesting article regarding the takedown from Salon.com :

  

If you have any questions regarding the content of this podcast or would like to pose a question to be answered in an upcoming podcast email us at [email protected].

You understand and agree that listening to this podcast does not in any way create or establish an attorney-client relationship between you and any ARC Law Group attorney. You should recognize that the information provided in this podcast is provided for your general information and should not be relied on as legal advice and is not a substitute for direct consultation with an attorney about a specific legal problem.

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Podcast: Music Licensing

This month on the Business Entertainment Sports and Technology Law Podcast, learn about some of the new and old ways to make money licensing your music.  Join ARC Law Group partner Mark Pearson and clerk Justin La as they get you in synch with royalties for placing your music in movies and commercials, and discuss how satellite and internet have created new ways for musicians to cash in.

 

Plus, we jam with musician and songwriter David Brookings. The Virginia native talks about his new album “The Maze” and spins a few yarns about world travels, recording at Sun Studio in Memphis and his friendship with former Apple CEO Steve Jobs.

This month’s music selections are all off David’s latest release, “The Maze”, including the track “Always Be The Same,” featuring podcast managing editor Ben Shaw on slide guitar. If you dig David’s groove you can see him play live on November 30th at Santana Row in San Jose, CA.

You can buy David Brookings’ music on iTunes or visit his website at www.davidbrookings.net.  David is also on Facebook.

Make sure to check out ARC Law Group on iTunes, and subscribe to our podcast!

You can also follow ARC Law Group on Facebook and Twitter.

If you have any questions regarding the content of this podcast or would like to pose a question to be answered in an upcoming podcast email us at [email protected].

You understand and agree that listening to this podcast does not in any way create or establish an attorney-client relationship between you and any ARC Law Group attorney. You should recognize that the information provided in this podcast is provided for your general information and should not be relied on as legal advice and is not a substitute for direct consultation with an attorney about a specific legal problem.

Podcast: Blurred Lines

This month on the Business Entertainment Sports and Technology Law Podcast, ARC Law Group partner Mark Pearson and Podcast Managing Editor Ben Shaw present a special end-of-Summer blowout discussion on the controversies surrouding the top song of the season, Robin Thicke's Blurred Lines.

 

We begin with YouTube reversing of its decsion to block the uncensored version of the video for Blurred Lines.  Is their a parrallel with MTVs decison to air Michael Jackson's Billie Jean back in 1983? NOTE: The video posted above features nudity... You have been warned.

 

Next, we fill you in on the copyright infringement lawsuit invovling Blurred Lines and a couple classic tunes from Marvin Gaye and Funkadelic. 

 

 

...and here's a great mash up of both Marvin Gaye's Got to Give It Up and Blurred Lines.  Do you think Thicke copied Gaye? Send us a message on Twitter at @ARCLawGroup, and let us know your thoughts.

  

If you have any questions regarding the content of this podcast or would like to pose a question to be answered in an upcoming podcast email us at [email protected].

You understand and agree that listening to this podcast does not in any way create or establish an attorney-client relationship between you and any ARC Law Group attorney. You should recognize that the information provided in this podcast is provided for your general information and should not be relied on as legal advice and is not a substitute for direct consultation with an attorney about a specific legal problem.

Related articles Podcast: Live Performance Issues

Podcast: Live Performance Issues

This month on the Business Entertainment Sports and Technology Law Podcast, we get on stage with a discussion on live performance issues. Join ARC Law Group partner Mark Pearson and clerk Ben Shaw for a “live” look into the drama behind the scenes of your favorite tours, including a discussion on the infamous Van Halen “Brown M&M” Scandal.

Justin Gomes

Plus, we dim the lights and get a little silly with comedian Justin Gomes.  Find out how Justin and his comedy enclave known as Sylvan Productions bring the funny to the Bay Area.  We’ll discuss the differences between standup, improve and sketch comedy, and where you can see some of San Francisco’s top stage talent. We also want to congratulate Sylvan Productions on being named the 2013 SF Weekly “Best Comedy Troupe” award.

The music on this month’s podcast is courtesy of our good friend Jeff Michaels.  Jeff is known to add a little humor into his music from time to time. This month we feature songs from the “Lost in Boston” Album, while we wait for Jeff and his band mates to finish up their next release.

 

Buy Jeff Michaels’ music on iTunes or visit the website at www.jeffmichaelsband.com

Sylvan Productions can be found at www.sylvanproductions.com

If you have any questions regarding the content of this podcast or would like to pose a question to be answered in an upcoming podcast email us at [email protected].

You understand and agree that listening to this podcast does not in any way create or establish an attorney-client relationship between you and any ARC Law Group attorney. You should recognize that the information provided in this podcast is provided for your general information and should not be relied on as legal advice and is not a substitute for direct consultation with an attorney about a specific legal problem.

Podcast: Literary Publishing

This month on the Business Entertainment Sports and Technology Law Podcast, put your pen to paper with a discussion on literary publishing.  Join ARC Law Group partner Mark Pearson and clerk Ben Shaw for an informative chat about the different ways writers make money selling and licensing their books and stories.

AutoCult Issue #1 | Publisher, Dan Stoner

Plus, we get our motor running and head out on the highway with Dan Stoner, publisher of AutoCult magazine and the AutoCulture.org website. AutoCult is a magazine dedicated to, well, the culture of cars.  Dan shares a few of his interesting stories about cars, girls, art and how one potential distribution problem turned into a bonus for AutoCult readers. It’s a wild ride down the often bumpy road of magazine publishing.

The music on this month’s podcast is courtesy of Fishtank Ensemble.  The gypsy inspired band has a fun eclectic sound that even includes the playing of a “saw”.  The song we feature this month is the title track of their album Woman In Sin, and if you listen to this month’s podcast, you’ll know why we picked this little ditty.

Buy Fishtank’s music on iTunes or visit their website at www.fishtankensemble.com.

AutoCult can be found at www.autoculture.org.

If you have any questions regarding the content of this podcast or would like to pose a question to be answered in an upcoming podcast email us at [email protected].

You understand and agree that listening to this podcast does not in any way create or establish an attorney-client relationship between you and any ARC Law Group attorney. You should recognize that the information provided in this podcast is provided for your general information and should not be relied on as legal advice and is not a substitute for direct consultation with an attorney about a specific legal problem.

Related articles The Legal Ethics of Podcasting Podcast: Business Entities ARC Law Group: April Newsletter

Welcome to the month of May. 

Graduation season is here, and Jeff and I would like to send out big congratulations to law clerks Katherine West, Will Dugoni and Ben Shaw.  Enjoy the ceremony, the party and the short break…and then get ready to start studying for the Bar Exam.

A couple notes on this month’s podcast, which can be found below, and my conversation with Rebecca Brian the COO at NextSpace.  Our legal discussion had to do with business entities, but we failed to mention the newest form of business entity the Benefit Corporation. Why is this important to note?  Well, NextSpace just became a certified B-Corp, which is a Benefit Corporation that meets the B-Corp standards. Benefit Corporations are different from standard Corporations in that they are formed for a purpose that may or may not place the interests of the shareholders first.  For more info on Benefit Corporations and B-Corps check out our Benefit Corporation FAQ, and a hearty congrats to NextSpace on becoming a certified B-Corp.

During the conversation we make reference to the movie “The Lost Boys (1986)” which was filmed on-location in Santa Cruz, CA.  I couldn’t remember the stand in name used in place on Santa Cruz in the Vampire drama starring “The Coreys” (Feldman and Haim) and Kiefer Sutherland.  Of course, Santa Carla is the answer.  

For those of you who’ve already listened to the podcast, below is a picture of Rebecca donning the infamous orange NextSpace wig.  If you haven’t listened yet, this picture shall serve as a preview of the fun to be heard.

The British are Coming!  Yes, the Rolling Stones are on tour in celebration of their 50th anniversary.  There has been a lot of talk about the ticket prices for the “50 & Counting….” tour, which have an average price of over $500 for the two Bay Area shows.  Many long-time fans are priced out of this go around.  Generally, speaking, ticket prices have gone up dramatically in the last decade.  There are a number of factors contributing to the rise in ticket prices for concerts, including the “360” Deal. 

Traditionally, a record company received income off the sale of master recordings by bands that it had under contract (see,  owned). The record company would pocket 80% of the profits from the sale of an album giving 20% to the band or artist. Things like touring, merchandise and publishing were usually not part the recording contract. However, once digital downloads hit the scene income from album sales dropped dramatically.  Record companies seeking to find profits where they could, started offering artists and bands “360” deals, meaning the record company got a financial piece of all activities in the entertainment industry.

While it may be the case that the Stones are simply big enough to command $500 ticket prices, the general increase we’ve seen in prices is partly due to the fact that bands and artist now have to share touring income with their record company.  If you want to find out more about recording contracts I’ll be speaking on the topic at this year’s California Music Industry Summit, happening the weekend of June 15th and Laney College in Oakland.

Finally, an interesting ruling came down in the 9th Circuit last month involving the Jersey Boys.  As part of the hit musical a clip form the old the Ed Sullivan Show was shown in connection with a segment showing the Four Seasons battling the British Invasion of the late 60s (another Stones reference?). The owners of the rights to the Sullivan Show sued the Jersey Boys producer for copyright infringement.  The producer countered with a fair use argument based on commentary and criticism (for more on fair use check out this podcast episode). The 9th Circuit ruled that the use was, indeed, fair use as far as the stage play, but warned that the use might infringe should it ever be used in connection with a recorded (TV or Film) version of the Jersey Boys.  Interesting, at least for all us copyright lawyers.  

Until next month…

You understand and agree that use of this blog does not in any way create or establish an attorney-client relationship between you and any ARC Law Group attorney. You should recognize that the information provided on this blog is provided for your general information and should not be relied on as legal advice and is not a substitute for direct consultation with an attorney about a specific legal problem.

by Leslie O'Callaghan 

The following article discusses the various legal issues related to online advertising for lawyers..

I.  Introduction

Radio and television advertising has often been mocked as sensationalist and dramatic.  Although these advertisements may seem trivial to viewers, the attorneys who create them must follow strict ethical guidelines.  Broadcasting advertisements on radio and television have already been widely addressed and accounted for by the ethical rules, but broadcasting has since expanded with the Internet.  Podcasting, specifically, uniquely involves a combination of the Internet and broadcasting.  The unique combination of mediums involved in podcasting begs the question of, what ethical rules apply to this modern medium? 

Broadcasting on television and radio has existed since the Supreme Court decided Bates v. State Bar of Arizona.[1]  Bates, held that a blanket restriction on legal advertisements violated attorneys First Amendment rights, and thus allowed for legal advertisements for the first time.[2]  The Bates case is the most seminal case on legal advertising but it was decided before the Internet existed. 

The Internet has a high information capacity, meaning users are unlimited in the content they put on the Internet.  Unlike advertisements on television and radio, lawyers advertising on the Internet are not charged by the length of time that their advertisement runs and they are not regulated by a third party such as a cable network.   For example, blogging is free to create and has an unlimited capacity for information.  A blogger can put as much information out on the web as they like with no limitations on content.  An advertisement broadcast on the radio or television does not have such freedom.  They are typically limited to minute long time segments, which are broadcast and then “disappear” whereas a blog can be left on a screen for unlimited periods of time.  Furthermore, an individual can create, distribute and update their blog on their own without any regulation by a third party.  Television and radio advertising requires their creators to follow guidelines provided by the individual that they are buying the advertising time from. 

Secondly, the Internet can be viewed worldwide.  Radio and television commercials are often limited to a certain demographic, this is economically feasible for an attorney and it also guarantees that laws specific to a state will stay within that state.  Laws are different from state to state and an attorney on radio or television can limit their message to providers within the state that they practice.  If an attorney wants to put out a television advertisement regarding a class action suit based on personal injury case in New York they can take precautions to try and limit their audience to New Yorkers and thus avoid presenting state specific laws to the wrong state.  Certainly, an individual visiting New York from out of state may view this commercial, but by targeting a geographical area the attorney is still taking measures to prevent as much misinformation as possible.   This level of control over who can view the advertisement is not present with the Internet, and is key to not “misleading” the audience.  The “misleading” standard is the crux of the ethical rules governing advertisements. 

Finally, there are many different mediums that attorneys can use on the Internet.  There is live chat, e-mail, video, audio and now podcasting.  These different mediums require different analysis, unlike television and radio, which is generally more limited in its capacity. 

There is little guidance in the model rules directly addressing the ethical rules involved with podcasting.  The word podcasting doesn’t appear in either the Model Rules, the comments on the Model Rules or in the California Rules of Professional Conduct.  Recently, application of the Model Rules to the Internet has caused revisions and new opinions; most notably blogging and social networking sites have received attention.  These revisions are included in the 2002 revisions of the Model Rules.  A closer look at these rules reveals how the Model Rules apply to podcasts.  Although the above-mentioned concerns are present with regard to advertising on the Internet, specifically podcasting, the Model Rules can still be applied to podcasts. 

II.  Podcasts and the Model Rules governing Advertisements

Historically, the Model rules stated that lawyers should not seek out clientele and should not advertise.  But, after the Bates case the court acknowledged that this historical concern was outweighed by the public interest, specifically, a need for individuals to be informed and thus able to receive legal services.[3]   This sentiment, that advertising is important to the legal profession, is reflected in the comments to Model Rule 7.2 on advertising.[4] 

There is no Model Rule, or California Rule of Professional Conduct that expressly defines what constitutes an advertisement.  However, caselaw addressing the ethical issues surrounding advertisements has included lawyers’ websites and blogs.[5]  Thus, it is safe to assume that a podcast would similarly be considered advertising that must comport with the legal rules of ethics governing advertisements.

In 2002, the ABA House of Delegates adopted changes to the Model Rules.  Many of those changes involve the addition of terms to govern the technology that the modern lawyer faces.  The rules have not been applied to the specific area of podcasting but the changes that have been made are indicative of how the court will respond to inquiries over podcasts in the future.  Most important to the issue of the regulation of podcasts, section seven of the Model Rules governing “Information about Legal Services” was revised.

Model Rule 7.1 is the first, and broadest rule governing information about legal services.  It states that, “a lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.”[6]  This rule is applicable to all types of advertising, regardless of medium.  Many miscommunication issues that can arise when an attorney puts out information to a wide audience fall back on this rule.  Thus it is important, at the most basic level, that an attorney is clear and truthful in their podcast.   

Model Rule 7.2 addresses advertisements specifically, and is the most important rule regarding the creation, and ethical implications involved with podcasts.[7]  Model Rule 7.2(a) states, “a lawyer may advertise services through written, recorded or electronic communication…”[8]  This section of the rule was revised from is pre-2002 version to include the word “electronic” communication.  Thus, this section of the Model Rules is what allows for advertising via podcasting.

Part (b) to the rule sheds light on the costs that attorneys are allowed to pay for advertisements or communications permitted by the rule.[9]  Lawyers are restricted in what they can pay individuals who recommend the lawyers services.[10]  Most commonly, this section applies to lawyer referral services.  But the rule is also applicable to paying advertisers who are, in a way, recommending the lawyers services by assisting them with their advertisement.  Comment five to Model Rule 7.2 states, “A lawyer may compensate employees, agents and vendors who are engaged to provide marketing or client-development services, such as publicists, public-relations personnel, business-development staff and website designers.”[11]  Comment 5 to rule 7.2 is key to the production of a podcast.  Podcasts require technical savvy and thus properly executing a podcast will often require lawyers to work with non-lawyers.  This comment to the rule allows for the attorney to compensate non-lawyer assistants who aid them in the creation of their podcast. 

Record Keeping

Podcasting, blogging and other sources of information on the Internet present a challenge to attorneys who are required to maintain records of their communications.  By it’s nature, the Internet is designed to function as an up to date, constantly evolving source of information.  It would be difficult for an attorney to save every version of a blog or website that is constantly being updated.  The sheer amount of information that can be conveyed on an Internet advertisement, coupled with the ease of editing this information would require attorneys to save every version of the content.  Furthermore, it would be a disservice to the consumer who could be presented with outdated information because an attorney could not easily update their information due to onerous record-keeping standards. 

The recording rules outlined in the pre-2002 version of the Model Rules required that an attorney keep a copy or recording of an advertisement or communication for two years, as well as a record of when and where it was used.[12]  But in 2002, the ABA House of Delegates deleted this record keeping provision from the Model Rules previously found at Model Rule 7.2(b).  The recording requirement included in the pre-2002 version of the Model Rules existed as a means to “facilitate enforcement” of the Model Rules governing advertising.[13]  In coming to the conclusion that the provision should be deleted the Ethics 2000 Committee recognized that this was an onerous standard that had “become increasingly burdensome” and that such records were “seldom used for disciplinary purposes.”[14]  This alleviates the challenges that attorneys face when attempting to record information on the Internet.  However, California still has a recording requirement.  Rule 1-400 of the California Rules of Professional Conduct requires an attorney keep records of their advertisements for two years.[15]  

Information conveyed on the Internet can still be maintained.  Attorneys can archive posts or save data to a hard drive.  It is important that attorneys recognize that legal blogs, websites or podcasts require special care and are subject to regulations that non-legal blogs, websites or podcasts are not.  An attorney should be careful to only publish well thought out information.  Then, if this information requires updates or edits a note could be made at the bottom of the content signifying the change.  This would solve the issue of having to save multiple versions of content.  

Avoiding Confusion over Jurisdiction

New additions to the Model Rules help protect attorneys from misleading consumers across the multijurisdictional reach of Internet advertising.  As an advertisement, a podcast must include the name and office address of at least one lawyer or law firm responsible for its content.[16]  The previous Model Rule regarding these disclosures did not require the lawyer to include an address.  According to the recommendations of the Ethics 2000 Commission this addition to the 2002 version of the Model Rules was a direct response to the multijurisdictional nature that the Internet presents.[17] 

A television or radio broadcast can be limited in scope with regard to the specific audience that it reaches.  Lawyers practicing California law can take precautions to try and limit their television or radio audience, geographically, to California.  The Internet does not provide this geographical limitation.  This could potentially cause great confusion among individuals who read, or listen to information presented on a podcast by a lawyer that may be inaccurate due to the state in which the lawyer’s practice relates.  By providing an address the Model Rules seek to avoid this problem by clearly identifying to individuals where the information pertains.  The disclosure of an address may not be clear enough to a layperson to inform them of the different state and federal jurisdictions.  Thus, it may be advisable for an attorney to be even more clear by including a disclaimer about where the specific laws they are talking about control. 

III.  Content of the Podcast

The above-mentioned guidelines govern what an advertisement is and the format requirements that those advertisements must meet.  The following rules focus on the content of those advertisements.   What is said in an advertisement is just as important as the format of the advertisement.

Client Confidences and the First Amendment

Under ABA rule 1.6(a) a lawyer “shall not reveal information relating to the representation of a client unless the client gives informed consent.”[18]  There are a few exceptions outlined in this rule but they relate to breaking confidence out of necessity such as when it is in the public interest.  The comments note, “…trust…is the hallmark of the client-lawyer relationship.”[19]  It is imperative to effective representation for clients to be entirely truthful to attorneys without having to worry about confidentiality. 

Model Rule 1.6 applies, specifically, to information relating to the representation of a client during the lawyers representation of that client.[20]  However, the Model Rules also provide similar standards of confidentiality to prospective clients and former clients.  Model Rule 1.18(b) makes the duty of confidentiality applicable to information conveyed by prospective clients.[21]  A prospective client is someone who “discusses with a lawyer the possibility of forming a client-lawyer relationship.”[22]  Furthermore, the duty of confidentiality continues after the client-attorney relationship ends.[23] 

Rule 3-100 of the California Rules of Professional Conduct is similar but stresses the importance of confidentiality even more, referring to Business and Professions Code section 6068 (e)(1), which states that it is a duty of a member to “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”[24]  This rule also allows for informed consent by the client for a breach of confidentiality. 

These rules may seem straightforward but, recently, in the context of blogs there has been conflict about client confidences.  It is common for attorneys to refer to cases that they’ve worked on or won as evidence to future clients that they are competent.  Attorneys can publish this type of information if the client consents.  Attorneys may also publish this content if the information is public.  A lawyer’s ability to speak about public information from cases is protected by the First Amendment but, if the speech is identified as commercial speech, it can be regulated.  This First Amendment justification for breaking a client’s confidences is controversial. 

Recently, the Virginia Supreme Court addressed the issue of client confidentiality in the context of blogging.  In Hunter v. Virginia State Bar, an attorney blogged about some of his closed cases revealing client names and case outcomes without obtaining consent from his clients.[25]  The attorney argued that he had a First Amendment right to reveal this information because it was public.[26]  The Court held that the attorney did have a First Amendment right to discuss public information, however, the Court also ruled that his speech constituted commercial speech, which could be regulated by the Bar.[27]  In Virginia, that meant that the attorney had to publish a disclaimer on his website.[28]  The conflict that arose in Virginia could easily be avoided by keeping client anecdotes limited to those who consent or by using other means to keep clients anonymous.    

Attorneys can use hypotheticals or other means to keep their clients identity disguised, in which case they would not need consent to discuss a case.[29]  Comment four to Model Rule 1.6 cautions against this, clarifying, if a third party could reasonably determine whom the information pertains to it is in violation of the rule.[30]  Simply changing a name or a fact in an anecdote may not be enough to disguise a client’s identity and can still be considered a breach of confidence.  Blogs, websites and podcasts are a unique area where attorneys can share long stories about the representation of their clients.  Attorneys must be careful to maintain client confidences in these anecdotes unless they have informed consent. 

In conclusion, the Model Rules may never mention the term podcast but they certainly govern attorneys’ use of podcasts.  Recent changes in the rules to account for technology show the Ethics Committees recognition that the rules need to be updated to allow for new technology.  Podcasts are no exception to this view that the use of the Internet by the legal profession only aids in providing qualified legal service to as many individuals as possible.  Nonetheless, attorneys must be careful to treat their professional use of the Internet as an area that is uniquely regulated.  Although, blogs, websites, and podcasts are generally unregulated forms of communication, the legal profession is subject to different standards.  The standards of ethics determined by the ABA must be abided by, even for this freeform type of communication.     

Leslie O'Callaghan is a contributor to the B.E.S.T. Law Blog published by ARC Law Group. She's a recent graduate of  the University of San Francisco School of Law, where she was the Executive Articles Editor of the USF Maritime Law Journal. Leslie can be reached at [email protected].

You understand and agree that use of this blog does not in any way create or establish an attorney-client relationship between you and any ARC Law Group attorney. You should recognize that the information provided on this blog is provided for your general information and should not be relied on as legal advice and is not a substitute for direct consultation with an attorney about a specific legal problem.

[1] Bates v. State Bar of Arizona (1977) 433 U.S. 350. 

[2] Ibid.

[3] Bates v. State Bar of Arizona (1977) 433 U.S. 350

[4] ABA Model Rules Prof. Conduct, rule 7.2

[5] Hunter v. Virginia State Bar (Va. Feb. 28, 2013) 121472, 2013 WL 749494

[6] ABA Model Rules Prof. Conduct, rule 7.1

[7] ABA Model Rules Prof. Conduct, rule 7.2

[8] ABA Model Rules Prof. Conduct, rule 7.2(a)

[9] ABA Model Rules Prof. Conduct, rule 7.2(b)

[10] Ibid.

[11] ABA Model Rules Prof. Conduct, rule 7.2, comment 5

[12] ABA Model Rules Prof. Conduct (1983), rule 7.2(b)

[13] ABA Model Rules Prof. Conduct (1983), rule 7.2, comment 5

[14]Ethics 2000 Commission Report, Reporter’s Explanation of Changes, rule 7.2(c)

[15]CA Rules Prof. Conduct, rule 1-400

[16] ABA Model Rules Prof. Conduct, rule 7.2(c)

[17]Ethics 200 Commission Report, rule 7.2(c)

[18] ABA Model Rules Prof. Conduct, rule 1.6(a)

[19] ABA Model Rules Prof. Conduct, rule 1.6, comment 2

[20] ABA Model Rules Prof. Conduct, rule 1.6, comment 1

[21] ABA Model Rules Prof. Conduct, rule 1.18(b)

[22] ABA Model Rules Prof. Conduct, rule 1.18(a)

[23] ABA Model Rules Prof. Conduct, rule 1.9(c)(2)

[24] CA Rules Prof. Conduct, rule 3-100

[25] Hunter v. Virginia State Bar (Va. Feb. 28, 2013) 121472, 2013 WL 749494

[26] Ibid.

[27] Ibid.

[28] Ibid.

[29] ABA Model Rules Prof. Conduct, rule 1.6

[30] ABA Model Rules Prof. Conduct, rule 1.6, comment 4