Gregory Beck of Public Citizen points to proposed New York bar rules that might make lawyer blogging prohibitively difficult. Under the rubric of regulating lawyer advertising, the rules will apply to "any public communication made by or on behalf of a lawyer or law firm about a lawyer or law firm, or about a lawyer's or law firm's services" (which is how they define "advertisement"). A New York lawyer blog in which the lawyer gives a brief biography of himself would literally qualify, since that's a "public communication made by ... a lawyer ... about a lawyer." Certainly a post noting the author's new article, forthcoming talk, or forthcoming media appearance would qualify. Presumably so would a post about another lawyer -- the definition doesn't say "public communication made by ... a lawyer ... about himself" or "about such lawyer," but "made by ... a lawyer ... about a lawyer."
And what are lawyer-bloggers bound to do with regard to such "advertising"? Most clearly, they are required to:
- print the blog each time a new post is posted (since that constitutes a "modification" of the "advertisement" that is the blog itself), and keep the printed copy for at least a year;
- send the attorney disciplinary committee a copy of the blog each time a new post is posted, and certainly each time a new post that mentions an attorney is posted;
- label their blogs "Attorney Advertising" on the front page -- even though such a label might itself be misleading -- unless the blog falls in the category of a "newspaper, magazine or other periodical" (a plausible interpretation, but far from certain); and
- include the lawyer's or law firm's actual name "in a type size as large as the largest type size used on the site" -- likely the huge font that most sites use for their header -- unless the lawyer's or law firm's name appears in the site's domain name.
It's also possible that
- Any posts about lawyers or law firms will have to be "predominantly informational," thus excluding posts that are predominantly expressions of opinion ("The content of advertising and solicitation shall be predominantly informational, and shall be designed to increase public awareness of situations in which the need for legal services might arise and shall be presented in a manner that provides information relevant to the selection of an appropriate lawyer or law firm to provide such services.").
- Lawyers could be subject to discipline if their statements about other lawyers -- including government officials who are lawyers -- are found to be "misleading."
I doubt that any of this is a deliberate attempt by the New York courts to suppress lawyer blogging; it sounds like they've just inadvertently defined "advertisement" too broadly. But unfortunately the language of the proposal is indeed very broad, even if the drafters' intent was too narrow.
The comment period on this proposal has been extended to November 15, 2006 (the due date was originally today), and I'm told that there have already been plenty of comments submitted that make some of these points. Nonetheless, it surely wouldn't hurt for there to be more such comments, of course if they are thoughtful, detailed, and reveal an understanding of the text of the rules. You can fax your comments to Michael Colodner at 212-428-2155, or mail them to
Michael Colodner, Esq.
Office of Court Administration
25 Beaver Street
New York, New York 10004
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