Sunday • August 27, 2006

Update: How Kentucky's Attorney Advertising Commission is now treating blogs by Kentucky lawyers

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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.”