KY LAWYERS WELCOME HERE . . . Kentucky lawyer Ben Cowgill of the Legal Ethics Blog is grappling with an ethics issue firsthand, as reported by David Giacalone, Eugene Volokh, and Cowgill himself. According to the Kentucky Attorneys' Advertising Commission, a lawyer's weblog is an advertisement that may be subject to a $50 fee for each post. It's a problem that caused Cowgill to quit posting to his weblog for the past month.

Yesterday, Cowgill reported that he's been given the green light to post while the commission continues to deliberate about the problem. In the meantime, 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.

UPDATE: More commentary from Monica Bay at The Common Scold (the Kentucky commission is "clueless about blogs"); Dennis Kennedy at Between Lawyers ("a troubling, but not unexpected, story"); and Professor Ribstein at Ideoblog ("what exactly is commercial speech, and why should it be entitled to less constitutional protection than non-commercial speech?").

ANOTHER UPDATE: Still more commentary from Evan Brown at InternetCases.com ("compelling example of 'antiquated' regulations being outpaced by the positive consequences of modern forms of communication"); Ken Lammers at CrimLaw ("if anyone thinks that most legal blogs are advertisements they have not bothered to read many"); Stu Levine at Tax & Business Law Commentary ("in due course, there will be no fee at all imposed on lawyer-authored blogs in that state"); Ernest Svenson at Ernie the Attorney ("cluelessness, they name is the Kentucky Bar Association"); Shubha Ghosh at AntitrustProf Blog (a "dangerous bit of legal prestidigitation"); and John Steele at Legal Ethics Forum ("will drag bar regulations into disrepute").

It's definitely the blawging news of the moment. David Giacalone has a roundup and collects still other links from Howard Bashman and others in "we are blawggers -- hear us roar." (Note to David: Please, no more Helen Reddy references on your weblog ever again.)

LAST UPDATE: Worked up as I am, I did another post about the controversy: "Act Like Lawyers, Dammit!"

Comments

[Ben Cowgill]

Thanks, Evan; I appreciate your post. Actually I winced when I read the phrase "ethics problems of his own." Under Kentucky's rules, a matter in dispute with the Advertising Commission is not an "ethics problem" unless and until it is referred to the disciplinary system based on a finding of intentional non-compliance. As I indicated in my own post about this issue, I submitted an information copy of my blog to the Commission at the time it was launched, and I have helped the Commission think through the issue of how to treat law-related blogs under the Kentucky advertising rules. So it's not an "ethics problem."

Having said that, let me compliment you for noticing the exception in the Rules for third-party publications. Ironcially, that means I can post the Legal Ethics Blog on your dime, but not on my own, according to a literal interpretation of Kentucky's outdated rules.

[Evan]

Ben: I understand why you winced at the phrase "ethics problem of his own." After reading your comment, I changed the phrase to "grappling with an ethics issue firsthand."

Believe me, it's a struggle churning out post after post without the help of a good editor. At the moment, mine's in bed asleep. (I mean Andrea, of course.) In any event, thanks for pointing out my insensitive phrasing, which I chose too quickly as a way to highlight the irony of your situation while failing to think through all the connotations of what I'd written. Please accept my apologies.

[The Bull Fighter]

In a sense, taking on a notorious case, such as the Michael Jackson trial, if done on a discounted or pro bono basis might be considered an advertisement for a lawyer's services, should one take a broad view of what an advertisement might be to include any sort of marketing or promotional effort.