That’s what the Kentucky Rules of Professional Conduct seem to literally say. Rule 7.02(1) says, in relevant part:
For purposes of this Rule, the following definitions shall apply:
“Advertise” or “advertisement” means to furnish any information or communication containing a lawyer’s name or other identifying information, except the following: . . .
That would literally cover any op-ed, law review article, book, blog post or anything else that the lawyer writes (unless he does so truly anonymously). Fortunately, exception (1)(g) (the only one potentially relevant to such situations) specifically exempts
[a]ny communication by a lawyer to third parties that is further distributed by a third party who is not in any way controlled by the lawyer, and for which distribution the lawyer pays no consideration
— which nicely exempts most traditional writings, but not self-published writings. Until the advent of blogging, this posed relatively little problem, but since blogs are self-published, any blog post that identifies the lawyer-author becomes an “advertisement.”
And for any “advertisement” that goes beyond certain boilerplate information (name, address, fee schedule, certain credentials, and the like) would then have to comply with Rule 7.05(2), which says:
Three (3) copies of a fair and accurate representation of any advertisement . . . shall be delivered to the [Kentucky Attorneys’ Advertising] Commission, c/o the Director, at the Director’s office, during normal office hours on a work day, at the same time the advertisement is used or published. . . . A filing fee of $50.00 for each advertisement filed under this subsection shall accompany each filing . . . .
So if you’re a lawyer in Kentucky, blogging from Kentucky (see Rule 7.01), and you want to blog using your real name, you must pay $50 per post. (Each post is a separate instance of “furnish[ing] . . . written, printed or broadcast information.”)
And in fact, the Kentucky Attorneys’ Advertising Commission is seriously considering applying the rule exactly as written, according to Ben Cowgill’s Legal Ethics Blog:
I submitted an information copy of this blog to the Commission on the very day it was launched so that we could proceed to discuss any question about how it should be treated under the regulations mentioned above. We have not yet reached a final resolution, but I have received a “green light” to continue posting, without paying a filing fee for each post, until the matter is resolved. . . .
It is my sincere hope that we will be able to agree on a sensible interpretation of the regulations that permits other Kentucky lawyers to launch law-related web logs. Several Kentucky lawyers have told me that they are very attracted to the idea of creating web logs as on-line journals about the areas of law in which they practice. But each of them has expressed concern about the filing fee mentioned above. I am hopeful that the time and attention I have devoted to the issue will resolve the problem for everyone and pave the way for other web logs by Kentucky lawyers. . . .
I hope the Commission quickly recognizes that it has no business restricting lawyer speech this way. Commercial advertising may indeed be restricted in certain ways, perhaps including these submission and filing fee requirements. But lawyer speech that isn’t advertising — such as a lawyer’s self-published book, or a magazine run by a lawyer in which the lawyer has a publisher’s column — is fully protected. (I realize that any statement by anyone who’s in any line of business may be indirectly a means of promoting his business; but that can’t be enough to deny full First Amendment protection to books, scholarly articles, op-eds, and the like that are published by any lawyer, doctor, engineer, or business owner.)
Even in the past, the rules were therefore somewhat overbroad. But in the era of blogging, where self-publication is a routine form of fully protected speech, and the presubmission and payment requirements are especially burdensome, the unconstitutional overbreadth of the restriction is especially glaring.
Thanks to David Giacalone (f/k/a . . .) for the pointer.
CORRECTION: When I first posted this, I erroneously said that the Kentucky Rules require not just a $50 filing fee, but also submission of the “advertisement” 30 days before it’s published. It turns out, though, that I was consulting an old version of the Rules; the Rules were changed (last year, I’m told) to eliminate the presubmission requirement. I’ve corrected the post accordingly, but my objection still stands — a $50 filing fee per post is surely unconstitutional.
Comments are closed.