f/k/a . . . the archives

June 7, 2005

Kentucky says every blawg post is an ad

Filed under: pre-06-2006 — David Giacalone @ 9:48 pm

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!]

 

dead end sign n At the core of this problem is Rule 7.02 of the Kentucky Code which

says:


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

should more precisely be deemed publicity, or self-promotion

or public relations.  They are not “advertising” as the term

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

spoken “advertising.”



  • 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.

Patent Baristas joked about the problem of calling a weblog an ad.  But,

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

own weblogs.

 

Ben’s battle has kept him from posting for over a month.  As he explains  boxerSignN

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
suddenly disapproves…
the scarecrow

  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. 

 

 

 

6 Comments

  1. I don’t think JCW was entirely wrong in saying that blawgs are advertising, in that they _can be_ advertising, but not that they are such at all times. Kentucky needs to rethink its position; that’s a silly one to take. If all blawging is advertising than why is not all print-based writing? If I do an article for the NJ Lawyer, is that advertising?

    Common sense, along with individualized analysis, should rule the day.

    Comment by TPB, Esq. — June 13, 2005 @ 11:31 am

  2. I don’t think JCW was entirely wrong in saying that blawgs are advertising, in that they _can be_ advertising, but not that they are such at all times. Kentucky needs to rethink its position; that’s a silly one to take. If all blawging is advertising than why is not all print-based writing? If I do an article for the NJ Lawyer, is that advertising?

    Common sense, along with individualized analysis, should rule the day.

    Comment by TPB, Esq. — June 13, 2005 @ 11:31 am

  3. Good points, TPB — except on John Steele’s analysis (you’d be a very easy grader on law exams).  I expect lawyers and law professors to be relatively precise in applying a definition to a particular set of facts — especially, when they’ve been thinking about it for a few days.   John did not say “can be.”  He was instead very emphatic about Ben Cowgill and his Legal Ethics Blog:

    “[Ben] is an ethics specialist who does respondant-side discipline work. So while it’s not a direct pitch for clients, it’s an advertisment just as surely as many big firm marketing pieces are.”

     

    Comment by David Giacalone — June 13, 2005 @ 12:33 pm

  4. Good points, TPB — except on John Steele’s analysis (you’d be a very easy grader on law exams).  I expect lawyers and law professors to be relatively precise in applying a definition to a particular set of facts — especially, when they’ve been thinking about it for a few days.   John did not say “can be.”  He was instead very emphatic about Ben Cowgill and his Legal Ethics Blog:

    “[Ben] is an ethics specialist who does respondant-side discipline work. So while it’s not a direct pitch for clients, it’s an advertisment just as surely as many big firm marketing pieces are.”

     

    Comment by David Giacalone — June 13, 2005 @ 12:33 pm

  5. You can now find the posting by Prof. Bainbridge that is mentioned in the June 8 update here – http://www.stephenbainbridge.com/2005/06/blogging_as_adv.html

    Comment by David Giacalone — January 6, 2007 @ 12:39 pm

  6. Kentucky needs to rethink its position; that’s a silly one to take. If all blawging is advertising than why is not all print-based writing? If I do an article for the NJ Lawyer, is that advertising?

    Comment by Fliesen — February 19, 2007 @ 2:12 pm

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