In both proposal and practice, regulation and restriction of weblog activity is seemingly everywhere recently. China is reported to be cracking down on weblogs, the better to avoid "seriously poison[ing] people's spirits." In Washington, the Federal Election Commission continues to flirt with the notion that weblogs that comment on political issues -- there aren't too many of those, are there? -- may have to be regulated as a form of political spending/campaigning. Now, via my online friend, regular reader, commenter, haiku purveyor and all 'round legal ethicist David Giacalone, comes word of this dismaying decision:
Ben Cowgill is fighting for the life of his Legal Ethics Blog and for the future of lawyer weblogs in the State of Kentucky. As insane as it may sound to the rest of the legal community -- and especially to webloggers -- the Kentucky Attorney's Advertising Commission has taken the position that a weblog is an advertisement. That's particularly deadly to the existence of a KY weblog, because Rule 7.05 (b) of the KY lawyers' code requires a "A filing fee of $50.00 for each advertisement" and for every change in the advertisement. [A pretty good excuse for turning off the Comments section!]
I encourage you to read David's post in its entirety, as well as to look at the numerous thoughtful remarks of others linked in his trackbacks and in David's follow-up report of this morning.
I have long been of a mind that attorney advertising in general is over-regulated, but this sets a fresh standard for misguided do-goodery. Some of my random thoughts on Kentucky policy:
- The policy may well have consequences beyond the borders of Kentucky itself. Consider, for instance, the situation of a weblogging attorney from some other state who is admitted in Kentucky for purposes of a single case. KY Supreme Court Rule 3.030 provides in part: "A person admitted to practice in another state, but not in this state, shall be permitted to practice a case in this state only if that attorney subjects himself or herself to the jurisdiction and rules of the court governing professional conduct . . . .", presumably including the advertising rules.
- Or consider this: The rules apply (see Rule 7.01) not only to advertising that "originate[s] in the Commonwealth of Kentucky", which is Ben Cowgill's problem, but also to advertising that is "directed to residents of the Commonwealth of Kentucky". How much of a stretch would it be for the regulators to conclude that any statement on the Internet, being freely accessible by the citizens of the Commonwealth, should be deemed to be "directed to" Kentuckians? This would pose a particular problem for large, so-called "national law firms," whose firm-sponsored weblogs are by their nature seeking an audience in many states, Kentucky among them.
- A more extreme hypothetical stretch: Might not the posting of so much as a mention of law-related events in Kentucky -- this post, for example, or David's original report -- by an attorney not admitted to practice in that State -- myself, for example, or David -- be deemed equivalent to the unauthorized practice of law in the Commonwealth? Be wary, these slopes are slippery ones.
- Given that the core definition of the act of advertising (see Advertising Rule 7.02) is "to furnish any information or communication containing a lawyer's name or other identifying information", can Kentucky lawyers evade the rule by posting anonymously?
- What of the case of a Kentuckian who maintains a weblog on primarily non-legal topics, but who happens to be an attorney? On this site, as opposed to my other weblog, legal topics are not the primary point, but they do come up when they relate to some other subject -- current affairs, wine, internecine kennel club disputes, etc. -- and I do refer to myself by name in the banner as "an attorney practicing in Pasadena, CA." Can a culturally-inclined non-anonymous attorney practicing in Lexington or Louisville or Bowling Green so much as mention his or her chosen profession on an otherwise non-law oriented site without running afoul of the advertising rules?
- It is hard to say whether this sort of thing should be deemed to be advertising in any case, given that some broad-minded attorneys are convinced that a wide-ranging weblog actively drives business away. Say. . . here's a thought: if your Kentucky weblog is actually counter-productive to generating legal business for your firm, can you insist that the Kentucky Bar pay you $50.00 per post?
All kidding aside, the Kentucky precedent is a disturbing one with serious implications for free expression, and the spread of useful information, even by non-lawyers. Read up on it at the links above and, if you are so inclined, add your own to the voices of Opposition.