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Law firm blogs to be regulated as advertising?

October 11, 2006

Leigh Jones of The National Law Journal asks “Will Law Firm Blogs Be Regulated As Advertising?” in an article today.

Arises out of states like New York revamping their ethics’ rules governing attorneys. Some lawyers are saying blogs are protected free speech and thus cannot be regulated under state’s advertising rules. As you’ll see in the article, I take a more practical approach.

The issue hinges on whether blogs are commercial speech. If so, they can be regulated as advertising. Blogs will be construed commercial speech if by their content seeks business.

It’s the content of the message itself, not that the lawyer’s intent, that’s controlling, not the intent of the lawyer publishing the blog. Will Hornsby (not quoted in the article) in his book, Marketing and Legal Ethics, explains while referencing discussion groups or chat rooms on the net (blogs not prevalent in 2000):

…[T]he content of the message should be the dominant factor in determining whether the communication is commercial speech. For example, if a lawyer makes it known that she or he has some expertise in a practice area through the content of his or her message, but those messages are informative and in the context of a discussion group thread, this communication would probably not be deemed commercial speech, even though the lawyer may wish to develop clients as a result of the activity and may in fact do so. As an analogy to this situation, the U.S. District Court, in Texans Against Censorship, Inc. v. State Bar of Texas, stated that a lawyer who ran a newspaper advertisement asking people what they thought of judicial selection methods was not involved in commercial speech, even though the lawyer intended the dialogue to be a marketing endeavor.

Larry Ribstein, a professor at the University of Illinois College of Law who authors Ideoblog, further nails the issue by explaining “…whether blog content is deemed advertising or fully protected political speech is an issue that could become the quintessential test of the bounds of commercial speech doctrine.” And he says “It doesn’t get any hazier than blogs.”

My approach is to be practical. States are going to pass rules governing lawyer advertising. Those rules may not spell out whether a blog is advertising or not. If that’s the case, why not be careful and assume that your blog could be construed as advertising? In which case, do those things you would do on a website, at a seminar, or social function to comply with your state’s ethics rules governing advertising.

Sure, argue that blogs are not commercial speech. Seek to get your state ethics’ governing body to exempt blogs as advertising. If it doesn’t turn out that way, be safe. Lawyers know that they have turkey’s as competitors who like to create problems by filing ethical complaints.

I understand Ernie Svenson not wanting to put disclaimers on his blog. But being safe with disclaimers and the like to comply with advertising rules need need not detract from a blog nor what blogs are doing to enhance the credibility of lawyers.

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