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
Living Will UPL? The latest issue of HALT’s Legal Reformer (April-June 2005) has
a JEER for Lancaster, Ohio, lawyer Frank W. Green. Green has filed a complaint with
the Ohio Unauthorized Practice of Law Board against nurse Karen Phillips for leading
a seminar on Living Wills at the Fairfield Medical Center in Lancaster. We agree with
HALT. — Green deserves a BARonx Cheer! Similarly, although it’s good to see that the
Ohio State Bar Federation has an extensive Health Directives program, with a very long
list of “provider” partners, I’m chagrined that its list of presenters for seminars on the
topic includes only lawyers. Note: At the bottom of all the Health Directive webpages is
the statement: “None of the accompanying material is to be construed as legal advice.”
On June 30th, the Ohio State Bar is presenting a CLE seminar titled
“End of Life Decision: Legal, Medical & Ethical Considerations.”
Maybe it will clear up the UPL issue.
Exiled from the Blawg Republic: On May 24th, I wondered whether my
unfavorable words on Feb. 14 about the Blawg Republic were the reason why none
of my postings were listed on their Legal Ethics Page after Feb. 15, 2005. Yesterday,
I followed a Referral link to this website from BR and discovered that only the
name f/k/a and our former tagline now exist on the BR Legal Ethics Page. Them
coincidences keep buildin’ up, don’t they?
Get it off your chest, Your Honor: The HALT Legal Reformer also pointed me to
the tale of Judge Judith R. Eiler, of the King County [Washington] District Court, South
Division. Skelly covered the story quite well back in February, but I missed it. Despite
the claim in a 1998 Election Pamphlet that she “has a proven track record for tough, fair,
and consistent judicial decision-making;” and, despite having bachelor’s and masters
degrees in Communications and Rhetoric, Judge Eiler was reprimanded by the State
Commission on Judicial Conduct for “rude, impatient and undignified treatment of
litigants” — especially pro se ones, apparently — “addressing them in angry, condescend-
ing and or demeaning tone of voice.” In re Judith R. Eiler, CJC No. 4148 -F- 116 (with
links to audio of the hearing). Judge Eiler’s defense: Judicial Stress. You might want to
send the opinion and stipulation to your favorite rude judge. (See also Seattle P-I,
“Judicial stress lands on hapless litigants,” Feb. 5, 2005).
Two tips for judges garnered from the Eiler case: (1) Do not
wear a t-shirt in court that says”Wanna Piece of Me?”, nor
(2) use a large mug during hearings that declares “Annoying
People Annoy Me.”
Judge Eiler has been ordered to undergo psychiatric therapy and
sensitivity training. Washington State actually has a program, with
sliding scale fees, to help judges deal with psychiatric problems.
Tom Clausen is far better than I at venting without venom
(but, I am trying):
my old sneakers
in the trash
all through the house
the repairman tells me
any fool can do it
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