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!]
At the core of this problem is Rule 7.02 of the Kentucky Code which
7.02 “advertise or “advertisement” means to furnish any written,
printed or broadcast information or any other communication
containing an attorney’s name or other identifying information,
except [for instances not relevant to weblogs].
When J. Craig Williams asserted that blogging is advertising back in January,
f/k/a warned that something like this was going to happen:
Calling weblogs advertising can only confuse the meaning of
both terms. As viewed by Craig in his post, I believe weblogs
is commonly used, and I can see nothing to gain from blurring
the concepts. We don’t want to have to explain “Well, Ms. Bar
Counsel, my weblog is advertising according to MIPTC, but it’s
As Wikipedia succinctly says: “Advertising is the paid promotion
of goods, services, companies and ideas, by an identified sponsor.”
Craig’s definition would make most of the words ever written or
Beyond what I said in January, I want to make clear that
Ben’s weblog, like many other quality sites, shouldn’t even
be called publicity or public relations. It is clearly a public
service to lawyers and layfolk. It may, and should, enhance
his reputation, but it should not be “taxed” out of existence.
Ben Cowgill isn’t laughing, and neither are the other Kentucky lawyers
who are waiting for his test case to be resolved before launching their
Ben’s battle has kept him from posting for over a month. As he explains
in his post tonight, he is now in the final stage of his battle to convince
the Commission to take a more reasonable stance. We’ve got a lot of
good legal minds in the blawgiverse. I think we should all contact the
Advertising Commission, using the contact information on their webpage.
Tell them why the strict (and nonsensical) reading of Rules 7.02 and 7.05
is not necessary, will harm lawyers and the public in Kentucky, and may
violate a few constitutional rights.
p.s. This is so important, I’ve rushed it to press without
finding any suitable haiku accompaniment. Maybe tomorrow.
midnight update: how’s this one from Issa?
the village dog
ISSA, translated by David G. Lanoue
update (June 8, 8 PM): Professor Bainbridge disagrees with this analysis, and
I have responded here, noting that he really should concur, not dissent.
update (June 9, 2005 11 PM): I’ve gone more deeply into when a lawyer is advertising
for the purpose of the Rules of Professional Conduct.
update (June 10, 2005 1 PM): J. Craig “weblogs are advertising” Williams has clarified his
meaning and let KAAC know he disagrees with them. Ben Cowgill has collected and quoted
some of the best analysis on the issue as an update to his original post.
June 7, 2005
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