ACT LIKE LAWYERS, DAMMIT! . . . All right, so I have a little more to say about Kentucky’s blawging controversy, especially after I read Professor Bainbridge’s recent post on the issue (a response, in part, to David Giacalone), which I consider way off the mark. But let me begin at the beginning. Looking over all the posts about the controversy, it seems to me that Ken Lammers was right on target when he wrote, “if anyone thinks that most legal blogs are advertisements they have not bothered to read many.”

[Post continues by following the link below]

As Lammers implies, part of the problem may be that the members of the Kentucky Attorneys’ Advertising Commission simply haven't read a lot of law-related weblogs. If so, they’d be no different than 90-95% of the lawyers I know. It makes sense too. If the members of the commission did read weblogs, I doubt they'd be considering a result—that is, treating weblogs as advertising—which is clearly not contemplated by the spirit of their own rules.

Ah, the rules. Did anyone actually read the Kentucky rules? Eugene Volokh did, even though in the first instance, he read the wrong version of the rules (exactly the sort of mistake I’d expect myself to make). I read them too. And reading the rules, I noted something that I think is important, which I wrote about in my first post on this issue: the seemingly broad definition of “advertising” under the Kentucky rules isn't really as broad as it seems at first blush it you take into account the nine exceptions (which Giacalone, by the way, omitted from his original post about the controversy, probably hoping to save some space).

One of the exceptions is for traditionally-published books and articles. The Kentucky Attorney’s Advertising Commission, in other words, has no desire to regulate lawyer-penned books and articles as lawyer advertising. (Self-published books are regulated, a minor impediment to my argument, as discussed below.) What about all those commentators who implied the Kentucky commission was foolish or backwards or just plain stupid? Well, it’s not really true. Most likely, as with many lawyers, the commission is just ignorant of what a “weblog” is.

Meanwhile, many of those who commented on the issue leapt immediately to the constitutional arguments. We trial-lawyers-in-trenches have a saying about constitutional arguments: once you open your mouth to make one, it’s a sure sign you think you’re going to lose. Might there be an easier way in this case? I think there is. If I were a lawyer making the case to the Kentucky Attorneys' Advertising Commission, I’d pocket the constitutional arguments for now and spend my time pointing out why lawyer-penned weblogs are more like law-related books and articles, which the commission doesn't want to regulate, than they are like lawyer advertising, which the commission does.

How to make these comparisons? There are probably a lot of ways. You could begin by asking the purpose of regulating legal advertising in the first place. Are the same concerns present with weblogs, i.e., does a weblog post pose the same danger for an uneducated consumer that might be present in a Yellow Pages ad? Definitely not. A simpler approach would be to compare a typical lawyer ad to a typical weblog post. Here’s a St. Louis Yellow Pages ad:

CRIMINAL LAWYER
Felonies & DUIs
We Fight Hard to Keep You Out of Jail
Don’t Take on the Court System Alone!
[Lawyer name]
[Lawyer number]

Not much like a weblog post, although lawyers who don’t read weblogs can hardly be expected to know this. If you were educating such lawyers, what weblogs would you send them to in order for them to discovery how different weblogs are than typical lawyer advertising? How about sending them to ProfessorBainbridge.com, which I once described in the Illinois Bar Journal as “an eclectic mix of law, business and economics, politics and current events, Catholicism and wine." That seems like a good pick, though there are easily a hundred others.

Not surprisingly, I also chose ProfessorBainbridge.com for a second reason. As it happens, Professor Bainbridge wrote today about the very issue under consideration, and took a contrarian position—i.e., that weblogs are advertising—that is way more draconian than the conclusion I think the Kentucky Attorneys' Advertising Commission will ultimately reach. Bainbridge says, for example, that “self-promotion = advertising,” which goes a lot further than Kentucky does, once you factor in the nine exceptions to Kentucky’s definition of "advertising." So while I think that Professor Bainbridge’s post is just plain wrong, it's also clear that his post would not constitute advertising under the spirit of the Kentucky rules--just as his books wouldn't constitute advertising under the letter of the same rules. And that’s true, by the way, even though the Bainbridge books are written and published, at least in part, to promote Stephen Bainbridge and his legal acumen—otherwise, I suspect, he’d be publishing them anonymously.

Finally, about self-publishing: as I stated, a problem with my argument is that under the Kentucky rules, self-published books and articles are not excepted from the definition of advertising. While a problem, it also suggests another way of reaching a compromise about weblogs: that is, by convincing the Kentucky commission that it should retract its unusual resistance to self-published writing. This alone would solve the problem for weblogs, as I pointed out in my first post. And what better way of overcoming an aversion to self-published writing than with the example of lawyer-written weblogs, most of which are of extremely high quality?

UPDATE: In a new post, David Giacalone writes, "The question 'is a weblog advertising?' is, therefore, not very helpful.  It should instead be 'when is a weblog, or any of its parts, advertising?'" It's a good point. My recommendation: go read the whole thing. (And Professor Bainbridge also updated his post. More interesting reading.)

Comments

[David]

But aren't blogs advertising? Not all of them, of course. Take your blogs. I wouldn't consider the Legal Underground "advertising," it's more fun. Sure you talk about the law (specifically anti-tort reform), but also the lighter side of the law.

But what about the Illinois Trial Practice Weblog? I think that it's not a big stretch to say that in addition to educating others, you are also saying that you are a top notch Trial Practice firm. Some evidence of this is that you link to your firm.

Why are blogs good advertising machines? Well, when they are updated frequently, if their content is specialized, they perform well on searches. A search for "Illinois Trial Lawyer" on Google puts your ITP blog #2 (Behind Illinios TLA), and "Illinois Tort Lawyer" is 3rd. Pretty good advertising!

I think a bright-line rule is wrong; but there should probably be some regulation.

[Evan]

David: Reasonable minds can certainly differ. While thinking of weblogs as self-promotion rather than advertising (a distinction without a difference for some), I admit I am careful not to say anything in a weblog post that I would not be able to say ethically in an advertisement--misstatements or exaggerations about my law practice, for example.

Meanwhile, the Illinois Trial Practice weblog can be thought of as a book about trial practice broken into short sections. What would it mean if bar associations began treating publications by West or James Publishing as "advertisements" by the lawyers subject to the various sometimes very intrusive regulations that exist around the country? Seems like a bad turn to take to me.

[David Giacalone]

Evan, I think you're on the right track here -- we need to ask what is being said in a weblog and then compare it to what an advertisement is (or should be) for the purposes of regulating lawyer ads. Using PopPsych that equates every sort of "self-promotion" with "advertising" is simply not helpful, nor lawyerly.

I did read the KY Rules before my first post and specifically said that none were applicable to weblogs. That's precisely because the exceptions do not cover self-published items, but only third-party publications. It doesn't much help a lawyer trying to have a weblog in Kentucky today, to say "look at all the exceptions" when none of them are applicable. The Advertising Commission has to look at the Rules currently promulgated by its Board of Governors and the KY Supreme Court and decide how to apply them. The Commission would have to decide to override the existing rule on self-publishing to let weblogs slide. Although it has the power under Rule 7.03(e)(1)to "Issue and promulgate regulations and such forms as may be necessary, subject to prior approval by the Board [of Governors]", it's a lot to expect that the lowly Commission (which seems more like staffers) would rewrite a Rule in the guise of setting out regulations explaining the Rules.

Ben is right: The current KY ad rules are antiquated. Maybe they were just poorly written -- they missed the point that the Rules and Codes for regulating lawyer ads are aimed at conduct that is actively seeking clients by telling people about your services. I hope to have more on this topic today at my weblog.

p.s. The way we webloggers have responded to this issue is a good object lesson: first we seem to react with out guts and emotions (even if throwing around claims of constitutional rights), and then a day or so later, we start thinking like lawyers.

[David Giacalone]

erratum:

In my p.s., I meant to type "with our guts",
not "with out guts"

[Marie]

Kentucky blawgers
They whine with their own kind of blog
They link to you once
And a day that’s all wrong looks all right

And I love them
God knows I love them
Kentucky blawgers
They get referrals
They send referrals
Kentucky blawgers

Well, they ain’t the kind
Make blogs just to turn a quick buck
But something they write
Sends more clients in just the same

And I love them
God knows I love them
Kentucky blawgers
They get referrals
They send referrals
Kentucky blawgers

They don’t need blawg'vertising
They got the yellow pages
They got the billboards
They got the radio
They got the cable
Free the Kentucky blawgers

And I love them
God knows I love them
Kentucky blawgers
They get referrals
They send referrals
Kentucky blawgers

Kentucky blawgers
Kentucky blawgers
Kentucky blawgers

[Marie]

Oops! I meant to add: "With all respect and admiration for Neil Diamond."