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!]
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
not advertising advertising.”
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
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.
June 7, 2005
Kentucky says every blawg post is an ad
6 Comments
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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
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
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:
Comment by David Giacalone — June 13, 2005 @ 12:33 pm
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:
Comment by David Giacalone — June 13, 2005 @ 12:33 pm
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
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