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State Ethics rules to bar blogs? Horse pucky

I remember when lawyer blogs, followed by the mass media, were a buzz a year or two ago that New York’s proposed legal ethics rules would bar lawyers from publishing blogs. There was nothing to it.

A spokesman for the NY courts acknowledged they never even considered blogs in shaping the rules. Nothing in New York’s original proposed rules nor the ultimately passed rules effected blogs in any way.

Then there was the Kentucky lawyer who blogged away that Kentucky’s ethics rules were going to require him to submit each blog post to the bar at the cost of $75. Other than a bunch of blogging on the issue from lawyers across the country who had nothing better to do that week, nothing came of it.

Then there was a request from California lawyers that I join a committee to shape California ethic’s rules governing blogs. They feared lawyer blogging would be outlawed. I thought the group was doing nothing other than drawing some publicity to the lawyers involved.

I explained that we have plenty of ethics rules governing lawyers’ activities, nothing needed to be passed to allow current legal blogging, and that blogging will be here for years to come. Nothing came of it that I know of.

Now we have a lawsuit yesterday by a law firm challenging Louisiana’s proposed lawyer advertising rules with an accompanying press release that we’re looking at the end of the free world if Louisiana is not stopped in it’s tracks. Maybe it’s not that draconian, but according to the law suit the new rules would supposedly outlaw blogging, twitter, facebook, online forums, and other online communities and mediums.

No where in the press release does the law firm explain the impetus of the proposed rules, that being to allow attorneys to truthfully publicize their services while restraining some unethical forms of lawyer advertising. Nor does the press release mention that the proposed ethics rules are already the subject of a lawsuit in Federal District Court, with the result being that the Louisiana Supreme Court has postponed implementation of the lawyer advertising rules.

I am not anti lawyer advertising. I view many state’s attempted clamp down on lawyer advertising as the old boys trying to prevent upstart law firms from getting work via cost effective client development or judges who find personal injury lawyer ads distasteful. I’m also all for law firms protecting our right of free speech. But I am not about to leave my common sense at the doorstep when looking at proposed ethics rules and the risk that they outlaw lawyer blogging.

Lawyers get paid to be creative. I am sure one could craft an argument that an overly strict reading of Louisiana’s proposed rules could preclude lawyer blogging. Could probably do the same for writing law review articles, giving an industry presentation, sending out newsletters, attending rotary meetings, or joining a country club. But other than making a big to do about nothing, I am not sure what one accomplishes.

As way of disclosure, though I was provided an advance copy of the complaint filed in yesterday’s lawsuit, I have not read it. And other than a cursory review of the proposed rules I have not read them.

The purpose of this post is to respond to the questions I am getting about the suit and the proposed rules. Based on a similar pattern in New York and other states, I believe the commotion is a big to do about nothing.

There is no reasonable way I can drop running of a company and respond every time Chicken Little claims the sky is falling on lawyer blogs. I call upon my common sense, past history and what is right in formulating my opinions.

In this case, I’ll bet my house, law suit or no law suit, that law blogs are not being outlawed by the Louisiana Supreme Court.

  • http://www.ehlinelaw.com/ Michael Ehline

    I just read your tweet. Great tweet and great site man. Lawyers who want to get ahead will “follow” you for certain.

  • http://kmspace.blogspot.com Doug Cornelius

    I agree with you Kevin.
    I don’t think the new rules prohibit blogging. I saw the Wolfe release and was concerned as well.
    http://www.lsba.org/2007InsideLSBA/documents/ethics/ProposedLARules7-1_12-2006.pdf
    It looks like 7.8(g) exempts an internet presence under 7.6(b). You just need to disclose the jurisdiction where you are licensed to practice and a bona-fide office location.
    That seems pretty ease to do with a blog, twitter, Avvo and other online activity.

  • http://www.citizen.org/ Greg

    I wouldn’t write off the buzz over the NY rules so quickly. The initial draft of the rules would have required lawyers to print out their blog posts and mail them to the state, among other things. The drafters did explicitly provide that the rules would apply to lawyer websites, so the fact that they did not even think about the effect on blogs is not a point in their favor.
    The reason there was ultimately nothing to it is that the outcry among bloggers got the state to change the rules before they were implemented. Of course, even without the blog related provisions, the rules were ultimately held unconstitutional.

  • http://www.wolfelaw.com Scott Wolfe

    Hey Kevin – Scott Wolfe here. We just posted a comment on the Simple Justice Blog (http://blog.simplejustice.us) in response to an article about our complaint similar to your article.
    You can read this comment here: http://tinyurl.com/blognoevil2
    The jist: We never said that the new ad rules “ban blogging.” In fact, our complaint states that our actual website is likely exempt.
    We’re more concerned about speaking elsewhere.

  • http://www.ehlinelaw.com/ Michael Ehline

    Didnt the Supremes already devise a rule? Wasn’t it that we lawyers can engage in commercial speech?

  • http://www.injuryattorney-losangeles.com Reza

    Kevin, I think its time to revisit this post. Things have certainly changed over the past few years with the addition of various social media such as twitter and attorney review sites. I would be interested to see how the various states are responding to the various blogging laws or twitter posts that attorneys are posting whether related to current cases or not.