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June 9, 2005

weblogs aside, when is a lawyer advertising?

Filed under: pre-06-2006 — David Giacalone @ 7:33 pm

podiumF It was great to see all the support generated yesterday for Ben Cowgill’s battle with the Kentucky Attorney’s Advertising Commission. But, Evan Schaeffer is correctwe need to act like lawyers when approaching the issue of whether and when a lawyer’s weblog constitutes advertising that falls within attorney discipline rules.

Before taking on the advocate’s role, a lawyer who wants to know whether certain activity comes under a rule should first ascertain what the rule covers — using traditional statutory construction techniques and precedents — and then compare the activity in question with the covered activity. Especially where it is speech that it is being regulated, the scope of regulation needs to be well-defined.

Here, we need to know what the regulators mean by “lawyer advertising.” Using Biz-Pop Psych mumbo jumbo about all self-promotion or content being “advertising” is neither lawyerly nor helpful. (It’s almost like saying that your local Highway Dept. has authority over the internet because we use the “information highway” metaphor.) Don’t go down that road just because a pied-piper professor wants to take you there. Just about everything every human being ever does is, in some sense, self-promotion. Advertising is a subset of that larger category.

announcer I believe — as explained below, and confirmed by common sense — that advertising is communication that is attempting to sell products or services, by giving information about the provider or his/her/its services. It is not communication by or from a provider that is aimed at educating, or entertaining, provoking, persuading (etc.) the recipient on a topic other than choosing or using the provider’s services. This means, of course, that some parts of a particular item or source of “communication” may be advertising while other parts of the same source are not (e.g., a newspaper, tv broadcast, or even a weblog).

When asking what lawyer discipline rules mean by “advertising,” it makes sense to look at the section-heading under which the rule in question falls, any explicit definitions, the actual text of the rules, relevant commentary, and any guidance that might come from other parts of the regulatory scheme. Let’s look at the current ABA Model Rules. Rule 7.2 directly addresses lawyer advertising, subject to additional limitations in Rule 7.1 and 7.3. Let’s see what Rule 7 tells us about the intended scope of lawyer advertising Rules (emphases added): Rule 7 and all of its subsections are captioned “Information About Legal Services.” Rule 7.1 is denominated “Communications Concerning a Lawyer’s Services” and it states: “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.” The first Comment to Rule 7.1 says:

[1] This Rule governs all communications about a lawyer’s services, including advertising permitted by Rule 7.2. Whatever means are used to make known a lawyer’s services, statements about them must be truthful.

Rule 7.2 is denominated “Advertising.” It begins “Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services. The first Comment to Rule 7.2 starts:

[1] To assist the public in obtaining legal services, lawyers should be allowed to make known their services not only through reputation but also through organized information campaigns in the form of advertising. Advertising involves an active quest for clients, . . .”

Rule 7.3 is demoninated “In-Person Contact with Prospective Clients.” It starts: noSolitS

“A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain . . .”

Note: Washington, D.C. has decided to eliminate totally Rules 7.02 and 7.03. It relies instead on Rule 7.01 to cover all Communications Concerning a Lawyer’s Services” — including advertising. It has, however, incorporated the first Comments under Model Rules 7.02 and 7.03, excerpted above, in its Comments to Rule 7.01.

Plainly, the Model Rules are focused on communications that are directly attempting to tell the public about a lawyer’s services or competence in order to entice them to use those services. The Model Rules do not have a separate definition for “advertise.” That clearly suggests that the common meaning is intended:

To make public announcement of, especially to proclaim the qualities or advantages of (a product or business) so as to increase sales.” (The American Heritage Dictionary, 4th Ed., 2000)

That common meaning is very consistent with the Comment to Rule 7.2, which equates advertising with “an organized information campaign” and an “active quest for clients.” The older Code of Professional Responsibility (used in New York) has a similar thrust. DR 2 101 on “Publicity and Advertising” prohibits “false, misleading or deceptive” communications, and “puffery, self-laudation, or claims regarding the quality of the lawyers’ legal services.”

noYabutsSN If I’m beating a dead horse, it’s because so many observers seem to be ignoring it. My conclusion about the scope of “advertising” under the Model Rules is underscored when we look at the broader picture of the Rules — most important, at the Preamble, which is a list of “The Lawyer’s Responsibilities.” Responsibility No. 6 begins:

“[6] As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education.”

A reading of the word “advertise” to include efforts by a lawyer to educate the public or seek improvement of the law would make no sense — even if such tasks by their very nature may enhance a lawyer’s reputation and indirectly gain clients. It would be counter-productive, if not impossible — given what we know about the mixed motives of human beings — to attempt to figure out the strategy behind a lawyer’s legal scholarship, CLE and public education activites, volunteer services, or reform efforts. The Advertising Rules are there to prevent injury to the public, not to play “Gotcha!” with a lawyer’s motives.

What about Kentucky? Kentucky has explicitly defined what it means to “advertise:”

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 . . .

not equal black This seems much broader than Model Rules cited above. However, as Evan Schaeffer has noted, the exceptions are the sort that show the importance given to scholarship, education, and publishing. (Unfortunately, self-published communications are not given an explicit exemption.) If I were trying to show the intended, limited scope of Kentucky’s lawyer advertising rules and definition, I would point out to the Advertising Commission and its Board that Kentucky’s Rules of Professional Conduct contain all the other limits on the definition of advertising discussed above (with their focus on communications about the lawyer’s services). To wit,

These limits should be properly read into the definition as it is applied by KAAC.Perhaps it’s time for KAAC to use its powers under Rule 7.03(e)(1) to “Issue and promulgate regulations and such forms as may be necessary, subject to prior approval by the Board [of Governors],” so as to better delimit the definition of “advertise.” Priority might be given to treatment of materials that on their face do not have as their primary purpose the “active quest for clients.”

What about Weblogs? It’s been a while, so let me repeat my conclusions above about the definition of advertising:

announcer I believe — as shown above and confirmed by common sense — that advertising is communication that is attempting to sell products or services, by giving information about the provider or his/her/its services. It is not communication by or from a provider that is aimed at educating, or entertaining, provoking, persuading (etc.) the recipient on a topic other than choosing or using the provider’s services. This means, of course, that some parts of a particular item or source of “communication” may be advertising while other parts of the same source are not (e.g., a newspaper, tv broadcast, or even a weblog).

As I often point out about weblogs, they — and their proprietors — are too different to be subject to just about any blanket rule concerning content or intent. The question “is a weblog advertising?” is, therefore, not very helpful. It should instead be when is a weblog, or any of its parts, advertising?” My conclusions above suggest that it is not simply a matter of asking if a lawyer started or is continuing her or his weblog mainly in the hope of someday having more clients, due to a display of expertise (or even personality). Nor is it a matter of which weblogs are optimized to attract the most search engines. A post that is purely informative or entertaining is not an ad. A post that is filled with puffery and self-laudation (about one’s law practice, not one’s kids or dogs), might indeed be an ad. One that specifically says “I’m offering XXX service,” clearly fits the ad rubric.

podiumF In the Kentucky Bar Association Ethics Opinion E-403 (1998), the homepage of a law firm’s website was compared to its yellow pages ad or firm brochures. Perhaps, for the weblog of a particular lawyer, only the About page provides information in a way that is touting the lawyer’s experience, competence or wares. Her homepage may incidentaly demonstrate the lawyer’s skills and qualities by its content and presentation, but that does not turn it into an ad

So, guess what, lawyers? We have to use our skills of analysis and persuasion, when arguing that a weblog, or parts of it, is or isn’t advertising. Simplistic vents or knee-jerk protectionism or paranoia won’t do.

update (June 12, 2005): There’s a good discussion at PrawfsBlog on applying lawyer advertising rules to weblogs. It started with Dave Hoffman’s apt argument that weblogs as weblogs do not deserve a blanket exemption simply because webloggers deem themselves to be so exceptional. I’ll think to that!

afterthought (June 13, 2005): My Comment at PrawfsBlog makes a point worth repeating here: Some parts of a law firm’s Newsletter (whether an on-line or print edition) may be “advertising,” because they tout the firm’s expertise or successes. Nonetheless, the sections that are merely case summaries, legislative updates, or tips to clients should not be treated as advertising (subject to accuracy and deception tests) — and, emphatically, each separate info blurb, or “article” within the Newsletter should not be taxed with its own $50 filing fee.

2 Comments

  1. I don’t fully agree with Evan’s and your emphasis on strict legal issues here. Certainly, that’s the first argument to be raised, but I’m fairly sure that Ben’s covered that in his dealings with the bar. More importantly, it’s not always legal arguments that carry the day in cutting edge cases – it’s legal arguments along with discussion of the policies like speech issues (even if there’s no real First Amendment legal issue); limiting ability of lawyers to educate the public and yes, the impact on solos. I think the role of us bloggers here is more along the lines of amici, each of us highlighting from our perspective or constituency how the Kentucky rule will impact us. THose kinds of policy arguments carried the day (or at least received attention) in the recent UMich affirmative action case as discussed at this link – http://www.law.com/jsp/article.jsp?id=1056139919083

    Comment by Carolyn Elefant — June 10, 2005 @ 4:57 pm

  2. Hi, Carolyn.  Did you read Evan’s piece and mine completely?  We both speak about the important role of lawyers in educating the public.  I stress that the important responsibility of lawyers to educate the public and help improve the justice system would be hampered if “advertising” is stretched to include information and educational materials not aimed directly at obtaining clients.   

    There is absolutely nothing inconsistent with bringing public policy into “lawerly thinking” when drafting, interpreting and applying regulations. (Remember the Brandeis Brief?)  Constutional limitations on government often take policy issues into account.  And, every law should be the embodiment of some “policy” or value that is being protected or nurtured.

    On the other hand, I would hope that lawyers are capable of defining their rules and regulations in ways that incorporate policy — rather than using poorly-constructed rules and then having to apply exceptions in what seem to be very subjective or arbitrary ways.

    Also, until you find a way to articulate more precisely the values you mean to protect when you raise the “impact on solos” issue, I cannot adopt it as a useful yardstick.  [E.g., Just last week, you stressed all the very wealthy solos you know.  Remember?]

    Comment by David Giacalone — June 10, 2005 @ 6:17 pm

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