It’s a topic that came up during my ethics talk at Avvocating, and which engendered a lively discussion on both Kevin O’Keefe and Scott Greenfield’s blogs: whether legal blogging is subject to the advertising rules that are part of every state’s Rules of Professional Conduct.
I’m a firm believer that the answer is “no.” And I thought this was an obvious proposition, but the angst around this issue indicates that this belief is not universal. So let’s unpack the question:
1. What’s a “Legal Blog”? Legal blogging, properly understood, involves an online series of postings and perspectives on the law and one’s experience dealing with it. This is the paradigm I speak of when I say it is blindingly obvious that legal blogs are not subject to the attorney advertising rules, and it’s what I mean when I refer to “legal blogging” below. So don’t go showing me some crap blog with a lawyer’s name on it and a long list of descriptions of auto accidents and say “I told you so.” That’s not blogging. Unfortunately, “blogging” has become a loose term, at times synonymous with the use of a blogging platform or format and little else. So, a caveat: Taking marketing materials and putting them on a WordPress blog doesn’t make it a “legal blog.”
2. The Limited Reach of the Attorney Advertising Rules. It’s a far deeper discussion than I have room for here, but suffice it to say that attorney advertising regulation can only apply to “commercial speech.” It doesn’t matter what expansive language the state bar has chosen to use in its rules. Under a long line of Supreme Court cases starting with Bigelow v. Virginia, the courts have delineated the difference between advertising regulation and regulation of non-commercial speech – the latter which must meet the “strict scrutiny” standard required of any content-based restrictions on speech.
Even then, the ability of the bar to regulate flatly commercial speech is still significantly constrained by the Constitution. Such regulation must meet an “intermediate scrutiny” standard in which the bar carries the burden of proving the regulation is necessary and not excessive (see Central Hudson v. Public Service Commission of New York).
So what’s “commercial speech”? It’s straightforward advertising or marketing; speech whose primary purpose is proposing a commercial transaction (see Bolger v. Youngs Drug Products Corp.). Does legal blogging meet this definition? Of course not. It’s protected expression, no more amenable to regulation as advertising than anything else an attorney writes or comments on for public consumption.
But wait – what of the fact that many erstwhile legal bloggers carry out their labors in expectation that it might grow their business? That through their displays of erudition they will attract new clients and meet other attorneys who may refer them business? That blogging will, in effect, expand and enhance their professional reputations?
I’ll concede that a great deal of legal blogging contains this kernel of motivation; this expectation that actively blogging will yield on the business development front.
It also doesn’t make a damn bit of difference.
Speech must be primarily commercial to be subject to regulation as commercial speech. As the Supreme Court found in Bolger, the fact that a communication is driven by an economic motivation would “clearly be insufficient by itself to turn the materials into commercial speech.” (p. 67) Or it must be separable from the protected, non-commercial speech – as a law firm’s name would be, or an exhortation to retain the lawyer, as compared to the content of a blog post itself. (see Riley v. National Federation of Blind of NY, p. 796)
If, however, the commercial purpose is secondary – or if it is “inextricably intertwined” with the protected speech – then the entire piece is free from regulation as commercial speech. (see Riley, again)
Legal blogging easily fits this bill. It is commentary and discussion, a way for lawyers to scratch their itch to write, develop ideas more fully, vent, expound, connect and become better at their craft. And yes, maybe develop business because of it. There’s a great discussion of how the distinction between commercial and non-commercial speech is parsed in the 1995 federal district court case of Texans Against Censorship v. State Bar of Texas (see pages 1343-45).
Still not convinced? Then ask yourself whether you’re ready to call for all legal publishing to be regulated under the attorney advertising rules. After all, every piece written by lawyers and firms for legal periodicals has a business development motivation. No one in their right mind would think that a piece written by a law firm partner for Corporate Counsel Magazine should be required to contain an “ATTORNEY ADVERTISING” disclaimer. Yet this is the logical destination of those who would claim that legal blogs must comply.
3. But Wait . . . Keep in mind that I’m talking about the advertising provisions of the RPC. There are other provisions of the rules that can play in with legal blogging, well outside of the commercial speech context. The attorney client privilege, the duties of loyalty and advocacy, the obligation to the tribunal, the interest in not committing malpractice – all and more are considerations as a legal blogger. Most are solved by not blogging about active cases, and treading very carefully when it comes to past cases.
It may seem an easy thing to add a disclaimer to your blog, to tip the hat to the regulators. And certainly some have neither the time nor the stomach to be a test case for the bar in the unlikely event that they come calling over this issue. But for the rest, don’t let worry about advertising compliance cloud what you write or otherwise color your thinking. Legal blogs aren’t advertising, and we should all feel empowered to express ourselves with impunity – within the bounds of our clients’ needs, of course.
Unless your “blog” is advertising, that is. As I said at the outset, once you veer from legal blogging into marketing, the rules apply. And if that’s the case, do us all a favor and simply call it your “website.”