Kentucky Lawyers Must Pay $50 for Each Post They Blog:

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.

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