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Will New York Law Bloggers Find It Much Harder To Blog?

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:

  1. 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;
  2. 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;
  3. 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
  4. 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.
Counsel
Office of Court Administration
25 Beaver Street
New York, New York 10004

Related Posts (on one page):

  1. Will New York Law Bloggers Find It Much Harder To Blog?
  2. Kentucky Lawyers Must Pay $50 for Each Post They Blog:
John (mail):
You have, of course, just violated the proposed rules. Scofflaw!

But perhaps you are not admitted in NY. I am, however, and in writing about you I may be in trouble if you are not a scofflaw.
9.15.2006 4:27pm
Houston Lawyer:
Although I pine for the days when attorney advertising was prohibited, I believe these restrictions impinge on an attorney's free speech. If you are going to follow this type of recordkeeping requirement to its logical end, shouldn't you require tape recordings of all sales pitches made face-to-face with potential clients. I strongly suspect that most false advertising by attorneys occurs in the face-to-face meetings.

Oh sure, we do those types of deals all the time. My partner Bob here is an expert in that field.
9.15.2006 4:35pm
logicnazi (mail) (www):
Sounds like your reading the 'about a lawyer or law firm clause' rather loosely. I suspect they will interpret this clause much more narrowly to capture only statements explicitly about a lawyer qua someone who will represent individuals for pay. Arguably giving a talk is acting as a academic.

I mean your interpratation would seem to apply the rule to personal's ads posted by lawyers. If we take lawyer to refer broadly to a person who practices law no matter what the context just putting an ad up on an online dating service is going to qualify.

Hell it is difficult to see how any legal magazines or articles could escape this either. Obviously the rule isn't going to be interpreted like this but it is poorly worded.
9.15.2006 4:36pm
logicnazi (mail) (www):
In fact I'm really amused by the idea of a lawyer making a personal's ad in which he claims to be attractive, fit and desireable and being brought up for discipline on the grounds he made misleading or non informational statements.

I mean if he claims that these statements are mere opinion his personal ad was not primarily informational. If they are not opinion and in fact most women do not find him attractive fit or desireable he was making misleading statements.
9.15.2006 4:39pm
Doug Sundseth (mail):
Unless there is something exempting comments on the floor of the state legislature, it would seem that this would (at least on its face) apply to every time a lawyer-legislator referred to himself or to one of his "esteemed colleagues" who is also a lawyer in a floor speech.
9.15.2006 4:44pm
Eugene Volokh (www):
logicnazi: It would be nice if they interpreted "public communication made by ... a lawyer ... about a lawyer" not as "public communication made by ... a lawyer ... about a lawyer," but rather as "public communication made by ... a lawyer ... about his own availability to represent someone for pay." But if that's what they mean, is it too much to ask them to say what they mean, instead of something else? Wouldn't that be the logical (not, I hope, the Nazi) thing for them to do?

Conversely, if the rules are enacted as written, can a lawyer really be confident that they'll be interpreted the narrow (albeit sensible) way you suggest, rather than the way they're actually written?
9.15.2006 4:53pm
Mary Katherine Day-Petrano (mail):
I think it is high time for me to apply for my bar admission in Kentucky, so I can challenge that each and every time I post my Title II ADA posts seeking to enforce my federal rights I the $50 surcharge will violae Title II's anti-surcharge prohibition, 28 C.F.R. Sec. 35.130(f). I like Kentucky! The equine disabillity service horse capital of the Nation ...
9.15.2006 5:17pm
Steve:
When most people think of a legal blog, they probably think of law-professor blogs like this one, whose authors do not even perform for-profit legal services to the public, and are certainly not seeking to use their blog to solicit such business.

But let's say I, as a member of the Intellectual Property Department at Sullivan &Cromwell (hypothetically), publish a blog that updates the public on developments in the law, interesting things our department is doing, etc. The ultimate purpose of same is to hold ourselves out to the public as experts in the field, attract readers to our firm website, and such. It seems intuitive that we should at least consider the appropriate way to apply ordinary restrictions on attorney advertising to my blog.

After all, I could write a blog in which all I talked about is notable cases I've handled, victories my firm has achieved, and other such items that are typically part of a firm's ordinary website. Publishing it in the form of a blog doesn't make it special.
9.15.2006 5:56pm
logicnazi (mail) (www):
Eugene, I agree completely. It is clearly a poorly worded statute. I guess I just meant to say that it would certainly be interpreted in a more plausible fashion so it isn't exactly something to worry about. Of course it is ridiculous and stupid to word the regulation like this in the first place.
9.15.2006 6:34pm
A.S.:
Wonder if this applies to anonymous commenters who might criticize Eugene's posts and who are admitted in New York (such as, um, me). Let's see:

"any public communication" -- check

"made by or on behalf of a lawyer or law firm" -- check

"about a lawyer or law firm" -- check

I guess that means I won't be commenting here at VC any more after these rules are adopted!
9.15.2006 6:59pm
David Krinsky (mail):
Doesn't this also cover a significant portion of what law professors do, too? It seems like a lecture or article discussing who a lawyer (or judge!) is or what he has argued or done would, literally speaking, qualify.
9.15.2006 7:47pm
Bruce Hayden (mail) (www):
Well, the bar notification is easy. Get the email address of the bar discipline organization, and set up the blog to automatically send copies of all posts to that address. I don't know if all blogging sites have this, but Blogger sure does - I just get enough email already that I see no use (yet) for this feature.

And one of the side benefits of this is that if the bar discipline organization is flooded by this sort of thing, they might seriously rethink their position.

Oh, and if you can't send it them directly, direct the email to a printer that prints email, and send what is printed. But I really do like setting the blogging email address to the bar discipline people. Serves them right.
9.15.2006 11:09pm
Mary Katherine Day-Petrano (mail):
Bruce, I hope the bars in question don't just set their spam filters too high. But maybe faxing all those emails is another alternative? I remember when my husband was on this one case, and the opposing counsel never let the fax stop for six months straight -- I never saw so much paper!!!

Well, I won't have to worry about this rule in any event, since California and Florida don't like the ADA content of my speech. When I accompanied my husband to The Florida Bar diverity committee meeting last Thurs. and suggested they have unjustifiably excluded a lot of people from bar membership by failure to accomodate speech recognition assistive device accessibility, some of the supposedly "diversity" committee membership treated me like I was a virus that had just infected The Florida Bar.

Nothing has changed since Virgil Hawkins.
9.16.2006 1:54am
Toby:
Mary Katherine.

You have run up against the [false] [rebuttable] proposition that diversity committeess have any interest in any diversity of perspectives or experience...
9.16.2006 10:39am
Mary Katherine Day-Petrano (mail):
Thank you, Toby, for the explanation. As I have explained on other posts on the VC, being autistic, I tend to take the representations made by people, including the bar diversity committees literally. My mistake. No wonder they reacted like the moment the Russian ambassoador was let into the war room in Dr. Strangelove ...
9.16.2006 3:15pm
heidi_ht (mail) (www):
Thank you so much for posting your analysis - I'm off to write my comment and, possibly, enjoy my last few months blogging, which I've done for just over five years now. I'm a sole practitioner, and I'm also president of a nonprofit, and I worry that if this proposal becomes a rule, I'll have to stop posting on our site's blog about, say, Terms of Use edits or even book reviews - the former would be discussing my opinion as to what a ToU should contain, and the latter would be wholly opinion.
I may be a lawyer, but I'm also a reader, an occasional poll monitor, the communications chair for my class reunion and a mom and wife - will the Bar allow me to blog in any of those roles, if I promise to add an "I'm not speaking here as a lawyer" notation in sparkly type?

Btw, am here via the tmblog, although I've read VC before on occasion.
9.16.2006 5:00pm
Nicole Black (mail) (www):
I've posted about this issue repeatedly at my blog (and have even devoted a special category to the proposed changes in the right hand sidebar on my blog). My blog is, incidentally, a blog about NY legal issues.

There's a great and fairly lengthy analysis of the proposed rules and their effect on websites, etc. which was submitted by a NY lawyer as a comment re: the rules. More information and a link to his comment can be found here at my blog.

I think that the affect of the proposed rules on blog was inadvertant, as I posted here.

A few weeks ago I attended a forum on the new lawyer advertising rules and the panel of speakers consisted of people who were instrumental in drafting the proposed rules. I specifically raised the issue of blogs and from their collective response, I got the distinct impression that blogs were the last thing on their minds when they drafted the proposed changes.

Accordingly, I've been encouraging my readers and fellow NY bloggers to submit comments re: the proposed rules.

It's nice to see bloggers outside of NY paying attention to this as well.
9.19.2006 12:20am