Practice management for lawyers — Blogging lessons

The president of Whole Foods recently revealed that he blogs! Not only does he blog with attribution to himself as CEO of his company, he also blogs under a pseudonym. Under the pseudonym, he failed to disclose his position; he used this blog to make false assertions about the financial condition of a primary competitor, Wild Oats Markets.

Today, the SEC is investigating his behavior because his company and the competitor have announced a merger. What was the impact of his commentary? Did it weaken the stock price of the competitor? Did it impact the will of the competitor to sustain the market fight or cave in and agree to the merger? These, among other issues, are what the SEC is investigating.

However, there is another issue of even greater significance. Whole Foods has portrayed itself as, ethical, honest and concerned primarily about the well-being of its customers. As one analyst opined, the company probably has enough "points in the emotional bank" to weather this storm but this maelstrom certainly chips away at their reputation and our confidence in them.

The lessons for lawyers may not be so obvious. It seems to me, however, that the lesson should be clear:

  • Be straightforward with clients.
  • Except where disclosure would be contrary to the interests of a client, be candid with adversaries. And, under no circumstances should one lie on behalf of a client. That is not part of our engagement agreement.
  • Build your reputation for candor, fair dealing and honest, but tough, advocacy.

Too often, a lawyer’s reputation crosses the line between strong advocacy and honesty. It’s one thing to be the voice of the client; it’s another to knowingly falsify commentary or break the rules just because you can get away with it.

The blogging world may foster further breaches of proper conduct … because it’s so easy and because it’s so fast.  Without a clearance house in the firm, one can merely sit down at the now ubiquitous computer screen and type out a message … and then (without a self-imposed ten second rule), how often have we hit the send button only to say, a second later, oops!?

Blogging is an outstanding method of communicating with our audience (target clients and other stakeholders); it provides us with the opportunity to convey our ideas to a broader spectrum of folks than we would otherwise have access to. But, we must use the medium judiciously, carefully and with honest decorum.


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