Tuesday • June 7, 2005

Update: How Kentucky's Attorney Advertising Commission is now treating law-related blogs

Comments (12)   TrackBacks (14)   E-mail this article

[Update posted 08/27/06]: Some of my readers have asked me to post an update on how Kentucky's Attorney Advertising Commission is treating law-related blogs published by Kentucky lawyers. They have correctly surmised that the Commission has addressed the issue in a way that permits Kentucky lawyers to publish law-related blogs, because I have called attention to the fact that other Kentucky lawyers have launched blogs over the past year.

The short answer is that the Commission has adopted a fair and sensible approach to the regulation of law-related blogs published by Kentucky lawyers. In a nutshell, the lawyer is expected to obtain Commission approval of the “About” page (or any other page that contains biographical information about the lawyer), pursuant to the same regulations that apply to law firm web sites. However, the lawyer is not required to submit each and every blog post (or pay a $50 submission fee each time), so long as the Commission is satisfied that the blog constitutes a legitimate exercise in journalism.

I applaud the Commission for adopting that approach. It represents a “win-win” outcome for all interested parties -- the Commission, the author of the blog, the Kentucky legal profession and the public at large. It permits the Commission to maintain consistency in the regulation of on-line information about Kentucky lawyers. It permits Kentucky lawyers to publish law-related blogs without undue burden or expense associated with regulatory compliance. It promotes the image of the profession by allowing lawyers to disseminate free information about developments in the law. And it allows the public to enjoy the benefit of law-related blogs authored by Kentucky lawyers.

Long-time readers of this blog will recall that I put the question on the table when I launched this blog early last year and immediately notified the Commission that I had done so. See "Kentucky advertising rules draw criticism." I advised the Commission that I did not believe this blog constituted an advertisement for legal services within the meaning and intent of Kentucky’s advertising regulations.  That triggered a review of this blog in accordance with the Commission’s standard procedures, exactly as I intended.

A panel of the Commission initially concluded that a law-related blog by a Kentucky lawyer should be required to comply with all relevant provisions of Kentucky’s attorney advertising regulations, no differently than a typical law firm web site. If that position had been adopted by the Commission as a whole, it could have meant that a Kentucky lawyer would be expected to re-submit the entire contents of a blog, and pay a $50 submission fee, each time the lawyer posted something new on the blog.  Needless to say, that would effectively prohibit Kentucky lawyers from publishing law-related blogs.

I then proceeded to discuss the merits of that position with the chair of that panel (who was also Chair of the Commission at that time), pursuant to established procedures for the informal resolution of attorney advertising issues. We quickly realized that there was an alternative to an “all or nothing” approach. The alternative was that a Kentucky lawyer could be required to submit the “About” page of a law-related blog if it contained information about the lawyer’s legal services, but would not be expected to submit each and every blog post.

I am advised that the Commission has adopted a working policy consistent with that discussion.  Needless to say, that policy does not prevent the Commission or any other agency from taking appropriate action regarding any blog by a Kentucky lawyer. In particular, the Commission can be expected to require a Kentucky lawyer to submit (and re-submit) an entire blog for review and approval if it finds that the blog is not a legitimate exercise in journalism or is merely a law firm web site masquerading as a blog.

With those caveats, the fact remains that the Commission has resolved the basic issue in a sensible way. It was faced with serious, competing concerns. On the one hand, it recognized that it could not, and should not, apply attorney advertising regulations in a manner that would unduly restrict on-line journalism by Kentucky lawyers. On the other hand, it is charged with a responsibility to enforce those regulations in a fair and consistent manner. The working policy strikes a sensible balance between those concerns, without tying the hands of the Commission and without opening the door for web sites that abuse the fundamental concept that a blog is an exercise in journalism.

As indicated above, other Kentucky lawyers have launched blogs in reliance on that working policy.  Those blogs include the excellent, substantive blogs of Kentucky divorce lawyer Diana Skaggs and Kentucky employment lawyer David Hoskins. There is every reason to expect that other Kentucky lawyers will launch blogs in the months ahead, now that they do not have to worry about how their blogs fit within Kentucky’s advertising regulations.

I am proud of the fact that I played a central role in making that possible. I raised the issue in a tangible and specific way by launching this blog, which was the first law-related blog authored by a Kentucky lawyer. I also notified the Commission that I had launched this blog, in order to initiate the process of resolving any issue the Commission wished to raise about the applicability of the advertising regulations. I then proceeded to invest time and energy in discussing how a resolution could be achieved. I even sought assistance from a constitutional law expert, so that I would be able to articulate the First Amendment issues to the Commission in a lawyerly manner.

I want to emphasize that there was nothing adversarial about my communications with the Commission. The Commission acknowledged from the outset that law-related blogs are a recent and unique phenomenon. It also acknowledged that the regulation of law-related blogs involves First Amendment considerations not raised by the content of conventional law firm web sites.

In this era of rapidly-emerging technology, agencies like the Advertising Commission are frequently confronted with issues of how they should apply their existing regulations to new kinds of activity.  The advent of law-related blogs has created exactly that kind of challenge for agencies charged with the regulation of attorney advertising. Kentucky's Attorney Advertising Commission has met that challenge appropriately.

Nevertheless, there is always a price to be paid for being the one who goes first. Some news accounts (and, indeed, some posts on other blogs) reported on this issue in a way that gave some people the mistaken impression that I was in “trouble” with the Commission over this blog. To this day, I occasionally encounter a Kentucky lawyer who has a vague idea that there is something controversial or questionable about this blog. However, I take comfort in the old saying that “a man who is not afraid of the truth has nothing to fear from falsehood.”

Earlier posts on this subject:

[6/10/05]:  Earlier this week I reported that the Kentucky Attorneys' Advertising Commission is considering the possibility of asserting jurisdiction over law-related web logs authored by Kentucky lawyers.  The net result could be that a Kentucky lawyer would be required to pay a $50.00 "filing fee" every time the "advertisement" is modified -- that is, every time anything is posted on the blog.

That report touched off a whirlwind of commentary on the web, beginning with a post by David Giacalone. Now the story has been picked up by Business Week and other mainstream media outlets, including the Kentucky News Network. 

Here's a sampling of what has been said:

• Professor Eugene Volokh of the UCLA School of Law (a recognized authority on free speech, intellectual property and internet law) wrote a long piece in which he stated in part:
  
  "I hope the [Kentucky Attorneys' Advertising Commission] quickly recognizes that it has no business restricting lawyer speech this way. Commercial advertising may indeed be restricted in certain ways, perhaps including these submission and filing fee requirements. But lawyer speech that isn't advertising — such as a lawyer's self-published book, or a magazine run by a lawyer in which the lawyer has a publisher's column — is fully protected. (I realize that any statement by anyone who's in any line of business may be indirectly a means of promoting his business; but that can't be enough to deny full First Amendment protection to books, scholarly articles, op-eds, and the like that are published by any lawyer, doctor, engineer, or business owner.)
  
  "Even in the past, the rules were therefore somewhat overbroad. But in the era of blogging, where self-publication is a routine form of fully protected speech, and the presubmission and payment requirements are especially burdensome, the unconstitutional overbreadth of the restriction is especially glaring."
• John Steele, who teaches legal ethics at the Boalt Hall School of Law at UC-Berkeley, posted a piece on The Legal Ethics Forum in which he concluded:
  
  "Here's hoping that the Kentucky Bar takes this chance to quickly modernize its rules and its approach.  Treating Ben's blog as advertising makes no sense, is probably unconstitutional, and will drag bar regulations into disrepute."
• Illinois trial lawyer blogger Evan Shaeffer decided to do a a little research of his own and quickly discovered an ironic twist in the Kentucky advertising rules.  As he explained in his post at the Legal Underground:
  
  "I took the time to read the Kentucky rules myself, and note that Rule 7.02(a)(7), which contains an exception for books and articles published by third parties, would also apply to posts by Kentucky lawyers on other lawyers' weblogs. Specifically, the exception applies to--

  Any communication by a lawyer to third parties that is published or broadcast by a third party who is not in any way controlled by the lawyer, and for which publication or broadcast the lawyer pays no consideration, shall be exempt from all the provisions of these Rules except Rule 7.1.

  "So while Kentucky lawyers might have trouble self-publishing weblogs or (as Volokh notes) their own books, they'd be safe writing for this weblog, since I publish it. It means that all of you Kentucky lawyers just itching to blog about the Kentucky Attorneys' Advertising Commission can do it here. After all, guest writers are always welcome.

  "Do I need to point out that I'm jesting, at least in part? Kentucky lawyers would be far better off posting to their own weblogs.  Here's hoping that the Kentucky Attorney's Advertising Commission realizes, as Giacalone and Volokh both point out, that weblogs might be promotion, but they're not advertising."

• Dennis Kennedy, the widely-known lawyer and legal technology expert, posted a supportive piece on the Between Lawyers blog, stating in part:
  
  "From David Giacalone comes a troubling, but not unexpected, story of the Kentucky Attorney's Advertising Commission's efforts to treat all blogs by lawyers as advertising. At the heart of the story is one of the nicest people I've met through blogging, Ben Cowgill, who, ironically, writes the Legal Ethics Blog. Ben has been working hard to explain blogging to the commission and pave the way for other Kentucky lawyers to blog without falling under difficult rules, and I want to thank him publicly for all of his efforts and wish him success in his efforts."
• Carolyn Elefant, the well-known champion of solo practitioners, observed on MyShingle.com that "filing fees" have a disparate impact on solo and small firm practitioners.

Other commentators include Robert Ambrogi at LawSites, Ernest Svenson at Ernie the Attorney, Monica Bay at The Common Scold, Evan Brown at InternetCases.com, Lisa Stone at the Law.com Legal Blog Watch, and the patent lawyers of Frost Brown Todd at their Patent Baristas blog.  Also see blog links collected at Overlawyered.com.

Finally, David Giacalone has advanced the discussion in an excellent follow-up post on his legal ethics blog.

[First post ]:

I know it may seem that I didn't devote any attention to this blog over the past month.  Actually, nothing could be further from the truth.  I devoted a significant amount of time to this blog throughout the month, although not in the way I would have liked.  I would have liked to spend the time posting news and commentary about the field of legal ethics; after all, that is the raison d’être of this blog.  Instead, it was necessary to spend the time communicating with the Kentucky Attorneys' Advertising Commission about the proper treatment of law-related web logs under Kentucky's lawyer advertising regulations.

Kentucky's regulations are unique and rather antiquated in comparison to ABA Model Rule 7 and the advertising rules of other states.  In fact, Kentucky's regulations were recently amended in the face of arguments that they constituted an unconstitutional prior restraint on commercial speech.  They no longer require Kentucky lawyers to obtain prior approval of proposed advertisements.  However, they still define "advertisement" to include any communication that contains a lawyer's name "or other identifying information".  They also require the lawyer to submit a copy of the advertisement to the Attorneys' Advertising Commission, along with a filing fee of $50.00. In the past, the Commission has interpreted those requirements to mean that the lawyer must pay a filing fee of $50.00 each and every time the content of the advertisement is modified.

Needless to say, it would be practically impossible for a Kentucky lawyer to publish a law-related web log if he or she were required to pay a $50.00 "filing fee" each and every time the content of the blog is modified.  Every blog post would cost the lawyer $50.00!

It appears that my Legal Ethics Blog brought this problem to a head because it was the first law-related blog launched by a Kentucky lawyer -- or at least the first that came to the attention of the Attorneys' Advertising Commission.  I submitted an information copy of this blog to the Commission on the very day it was launched so that we could proceed to discuss any question about how it should be treated under the regulations mentioned above.  We have not yet reached a final resolution, but I have received a "green light" to continue posting, without paying a filing fee for each post, until the matter is resolved.

It is my sincere hope that we will be able to agree on a sensible interpretation of the regulations that permits other Kentucky lawyers to launch law-related web logs.  Several Kentucky lawyers have told me that they are very attracted to the idea of creating web logs as on-line journals about the areas of law in which they practice.  But each of them has expressed concern about the filing fee mentioned above.  I am hopeful that the time and attention I have devoted to the issue will resolve the problem for everyone and pave the way for other web logs by Kentucky lawyers.

Thus, I will begin posting again this week.  It's good to be back!