September 29, 2006
Blogging = advertising?
posted by Alan Childress
The ABA Journal's ubiquitous on-line news source reports here that the NY bar is considering defining blogging by lawyers and law firms as "advertising." That'd pull it in under all sorts of filing and document-maintenance requirements as well as possibly dragging in out-of-staters. I don't see this proposal as feasible and predict that it will never make it to the finish line. Meanwhile, though, the media will play with the notion a while and treat it as a serious idea likely to happen. Even if the intended target, as suggested by the outcry quoted in the ABA piece, is small firms, solos, and plaintiff's lawyers, the [unintended?] reality is that its reach would sweep in all sorts of white shoe firms and their marketing programs too. Quite apart from the odd implication that they actually wear white shoes, they won't go for this idea either.
It's still a great hypo for an ethics class, or a first amendment one. Is it really speech proposing a commercial transaction and thus subject to the lesser protection given commercial speech? While we often teach the line between advertising and solicitation exemplified by targeted direct mail [as protected in Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988)], we may not explore the line between ads and something less--communication that does not rise to the world of ads and their intermediate scrutiny level of protection. This example arguably takes us there. And students can identify with blogging much more readily than in-hospital solicitations; cyberspace is their world the state is wanting to screw with, and they won't like it any more than they want MySpace to gratuitously announce their personal postings to all buddies on a user's list. They will get excited talking about this idea, and have to decide where ads end and human communication--but heaven forbid solicitation--begins. Already two of my students have emailed me queries about this.
That it is a perfect class hypo is further proof of its unreality, which means it'll never fly.
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Here is a link, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=917180
, to David Hricik's (Mercer) more general examination of ethical issues in blogging.
Addresses the legal ethical issues that face lawyers who blog (or blawg), including the potential for disclosure of client confidences, inadvertent formation of attorney-client relationships, and the unauthorized practice of law.
Posted by: Alan Childress | Oct 2, 2006 9:55:01 AM
Since this change is being proposed in New York, it is ipso facto important. But other states, including my own Alabama, consider a website to be a form of advertising. I run a blog (www.votelaw.com/blog), and under the Alabama rules I am supposed to send to the Bar Counsel any new matter I add to the blog (or my law firm website) within 3 days. So, twice a week, my assistant prints the main page of the blog and mails it to the Bar Counsel. (I once added more than 115 pages of material to the firm website at one time. It took one secretary most of a day to track through all the links to get all the pages.)
The articles I have read on the New York proposal make it seem even more restrictive than the Alabama rule.
Posted by: Edward Still | Oct 2, 2006 5:59:52 PM
Ed Still makes a great point. His example from Alabama, while supporting my point that this rule would be ridiculous, undermines a dismissive statement of mine that it will never pass in NY. I hope I am right (and still believe I am, if only for the reality Ed mentions that the NY proposal is even more restrictive than the one he lives under), for the draconian reporting reason Ed relates plus plenty more. But it's true that I may be underestimating the bar board's ability to shoot itself in the foot with obsessions like these that are not at all what the public cares about when they think "unethical lawyer." Thanks, Ed, and more importantly, Roll tide.
Posted by: Alan Childress | Oct 3, 2006 9:30:40 AM