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f/k/a archives . . . real opinions & real haiku

June 7, 2005

Kentucky says every blawg post is an ad

Filed under: pre-06-2006 — David Giacalone @ 9:48 pm

Ben Cowgill is fighting for the life of his Legal Ethics Blog and for the future

of lawyer weblogs in the State of Kentucky.  As insane as it may sound to

the rest of the legal community — and especially to webloggers — the Kentucky

Attorney’s Advertising Commission has taken the position that a weblog is

an advertisement.  That’s particularly deadly to the existence of a KY weblog,

because Rule 7.05 (b) of the KY lawyers’ code requires a “A filing fee of $50.00

for each advertisement” and for every change in the advertisement. [A pretty

good excuse for turning off the Comments section!]


dead end sign n At the core of this problem is Rule 7.02 of the Kentucky Code which


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 [for instances not relevant to weblogs]. 

When J. Craig Williams asserted that blogging is advertising back in January,

f/k/a warned that something like this was going to happen:

Calling weblogs advertising can only confuse the meaning of

both terms.  As viewed by Craig in his post, I believe weblogs

should more precisely be deemed publicity, or self-promotion

or public relations.  They are not “advertising” as the term

is commonly used, and  I can see nothing to gain from blurring

the concepts.  We don’t want to have to explain “Well, Ms. Bar

Counsel, my weblog is advertising according to MIPTC, but it’s


As Wikipedia succinctly says: “Advertising is the paid promotion

of goods, services, companies and ideas, by an identified sponsor.” 

Craig’s definition would make most of the words ever written or

spoken “advertising.”

  • Beyond what I said in January, I want to make clear that 

    Ben’s weblog, like many other quality sites, shouldn’t even

    be called publicity or public relations.  It is clearly a public

    service to lawyers and layfolk.  It may, and should, enhance

    his reputation, but it should not be “taxed” out of existence.

Patent Baristas joked about the problem of calling a weblog an ad.  But,

Ben Cowgill isn’t laughing, and neither are the other Kentucky lawyers

who are waiting for his test case to be resolved before launching their

own weblogs.


Ben’s battle has kept him from posting for over a month.  As he explains  boxerSignN

in his post tonight, he is now in the final stage of his battle to convince

the Commission to take a more reasonable stance.  We’ve got a lot of

good legal minds in the blawgiverse.  I think we should all contact the

Advertising Commission, using the contact information on their webpage

Tell them why the strict (and nonsensical) reading of Rules 7.02 and 7.05

is not necessary, will harm lawyers and the public in Kentucky, and may

violate a few constitutional rights.


p.s. This is so important, I’ve rushed it to press without

finding any suitable haiku accompaniment.  Maybe tomorrow.


midnight update:  how’s this one from Issa?


the village dog
suddenly disapproves…
the scarecrow

  ISSA, translated by David G. Lanoue

update (June 8, 8 PM):  Professor Bainbridge disagrees with this analysis, and

I have responded here, noting that he really should concur, not dissent.


update (June 9, 2005 11 PM):  I’ve gone more deeply into when a lawyer is advertising

for the purpose of the Rules of Professional Conduct. 


update (June 10, 2005 1 PM):  J. Craig “weblogs are advertising” Williams has clarified his

meaning and let KAAC know he disagrees with them.  Ben Cowgill has collected and quoted

some of the best analysis on the issue as an update to his original post. 




was it something i said?

Filed under: pre-06-2006 — David Giacalone @ 2:21 pm

tiny check  Living Will UPL?  The latest issue of HALT’s Legal Reformer (April-June 2005) has

a JEER for Lancaster, Ohio, lawyer Frank W. Green.  Green has filed a complaint with

the Ohio Unauthorized Practice of Law Board against nurse Karen Phillips for leading 

a seminar on Living Wills at the Fairfield Medical Center in Lancaster.  We agree with

HALT. — Green deserves a BARonx Cheer!  Similarly, although it’s good to see that the

Ohio State Bar Federation has an extensive Health Directives program, with a very long

list of “provider” partners, I’m chagrined that its list of presenters for seminars on the

topic includes only lawyers. Note: At the bottom of all the Health Directive webpages is

the statement: “None of the accompanying material is to be construed as legal advice.” 

  • On June 30th, the Ohio State Bar is presenting a CLE seminar titled

    End of Life Decision: Legal, Medical & Ethical Considerations.” 

    Maybe it will clear up the UPL issue.


tiny check Exiled from the Blawg Republic: On May 24th, I wondered whether my   exit

unfavorable words on Feb. 14 about the Blawg Republic were the reason why none 

of my postings were listed on their Legal Ethics Page after Feb. 15, 2005.  Yesterday,

I followed a Referral link to this website from BR and discovered that only the

name f/k/a and our former tagline now exist on the BR Legal Ethics Page.  Them

coincidences keep buildin’ up, don’t they?


tiny check Get it off your chest, Your Honor:  The HALT Legal Reformer also pointed me to

the tale of Judge Judith R. Eiler, of the King County [Washington] District Court, South

Division.  Skelly covered the story quite well back in February, but I missed it.  Despite

the claim in a 1998 Election Pamphlet that she “has a proven track record for tough, fair,

and consistent judicial decision-making;” and, despite having bachelor’s and masters

degrees in Communications and Rhetoric, Judge Eiler was reprimanded by the State

Commission on Judicial Conduct for “rude, impatient and undignified treatment of

litigants” — especially pro se ones, apparently — “addressing them in angry, condescend-

ing and or demeaning tone of voice.”  In re Judith R. Eiler, CJC No. 4148 -F- 116 (with

links to audio of the hearing).  Judge Eiler’s defense:  Judicial Stress. You might want to

send the opinion and stipulation to your favorite rude judge. (See also Seattle P-I,

  • Two tips for judges garnered from the Eiler case: (1) Do not

    wear a t-shirt in court that says”Wanna Piece of Me?”, nor

    (2) use a large mug during hearings that declares “Annoying

    People Annoy Me.”

  • Judge Eiler has been ordered to undergo psychiatric therapy and

    sensitivity training.  Washington State actually has a program, with

    sliding scale fees, to help judges deal with psychiatric problems.

  • Question for HALT: why did you use the image of a male judge

    for this story?


yyS Tom Clausen is far better than I at venting without venom

(but, I am trying):


without consent
my old sneakers
in the trash





we bicker
all through the house
    … cleaning







done –
the repairman tells me
any fool can do it


ClausenMug Tom Clausen from Homework (Snapshot Press 2000)

order it here



june morning

clammy pajamas

before the alarm



june evening

the thunderstorm

cools things down

 [June 7, 2005]

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