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State Ethics rules to bar blogs? Horse pucky

November 25, 2008

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.