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June 8, 2005

prof. bainbridge should concur, not dissent over ads

Filed under: pre-06-2006 — David Giacalone @ 8:42 pm

Professor Bainbridge weighed in on weblogs as advertising and thinks my distinction between

advertising and publicity, self-promotionor public relations is “pretty tenuous.”  [See my post

yesterday, “KY says every weblawg post is an ad.”] Since Prof. B is trained as a law professor, I

can forgive him for focusing on where he thinks I’m wrong.  Since I am trained as a mediator, I

hope he won’t mind my pointing out that our positions are not very far apart, if at all.


bainbridgePix Prof. B has pared down my quote a lot.  It was first made in a post in which I was

responding to J. Craig Williams’ assertion that weblogging is advertising. I was accepting

arguendo Craig’s position that lawyers have weblogs to get attention, and I was trying to bring

more precise language into the conversation.  The main point of my using the quote again last

night can be found in the rest of the quotation — where I feared that Craig’s blanket lumping of

weblogs into the category of advertising would force some lawyer some day to have to convince

Bar Counsel that his weblog was not “advertising advertising.”  [Good prediction.]


I also noted that Craig’s definition would make most of the words ever written or spoken “advertising.”  

Prof. B’s notion that “self-promotion = advertising” has the same weakness.  It turns op/ed pieces,

law review articles, casebooks, CLE presentations and much more into “advertising.”  When one

is trying to decide whether a communication should be regulated as “advertising,” it seems to me

that we should be trying to limit that term, by showing that it is a very distinct subset of self-

promotion — rather than publically equating all self-promotion with advertising.  By doing so,

Steve Bainbridge gives Kentucky regulators ammunition for bringing virtually all weblogs into

the category of regulated advertising.


Now, I know Prof. B. doesn’t want that result.  We both agree that some weblogs might well be

considered advertising, and that it is largely a matter of the lawyer’s intent, much of which will

be demonstrated by the content of the weblog.  However, I do not believe that everything a lawyer

does to enhance his or her reputation is advertising, nor that most weblogs written by lawyers are

advertising.  More important, I do not believe that every post in a weblog should be treated as a

separate ad.   That is especially true when Kentucky requires a $50 filing fee for every instance of

advertising and every change in an advertisement.

  • Could you imagine how many Tip Jars and Pledge Weeks our   coin plate

    mendicant Professor B. would have on his site, if every posting

    cost him $50??  And, could he fit any more BlogAds?

Yes, I was exercised yesterday, when I wrote about Ben Cowgill’s situation.  But, it was not

because I believe weblogs deserve a blanket exemption from advertising regulation. [I am not

a “blanket exemption” kinda guy, nor someone who does not see nuances or reason.] I wrote


  1. Kentucky’s advertising regulators have been asserting that a weblog is advertising

     — not that it could be advertising.

  2. Ben Cowgill’s Legal Ethics Blog is as far from being an “advertisement” as any weblog

    that discusses law could be.

  3. Kentucky’s extremely broad definition of “advertise” [Rule 7.02 ], together with its

    $50 fee [ Rule 7.05 (b)] for every posting would not simply be regulating weblogs,

    it would put them out of business. 

fedupski  I’m willing to bet that Steve Bainbridge agrees with much of what I just said.  I hope

I have not distorted his position.   We both agree that there is too much regulation of lawyer

advertising — see here, here, and there.  We both agree that — no matter what it is called — much

self-promotion (including much on weblogs) should not be regulated as lawyer advertising.   I

hope he agrees with me that Ben Cowgill’s Legal Ethics Blog is much more a public service than

an advertisement.


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

for the purpose of the Rules of Professional Conduct.  Meanwhile, Stu Levine has landed a big one,

with his portrayal of  Prof. Bainbridge as Charlie Tuna, aptly explaining just why all self-promotion

is not advertising.  Bringing up the rear:  Having just seen Prof. B’s  latest update to the above-linked

posting, I am of the mind to suggest he read my lament yabut vs. ellipses.



we are blawggers — hear us roar

Filed under: pre-06-2006 — David Giacalone @ 12:42 pm

Thirteen hours ago, just after 10 PM last night, I emailed a bunch of weblawggers

to alert then to Ben Cowgill’s tussle with the Kentucky Attorney’s Advertising

Commission over whether weblogs are advertising and every post requires a $50

filing fee.  (see our immediatelyprior post).  I asked them to spread the word about

this problem — which would kill nonymous weblogging by Kentucky lawyers.  Within

minutes, Howard Basman blurbed it, which is always a great start to amy information

campaign.  Within the hour, Monica Bay devoted significant space, in a post called

Cluless,” Dennis Kennedy discussed lawyer-bloggers and ad regulation, offering Ben 

his assistance, and  Eugene Volokh wrote an extensive piece on the free speech issues.  


By the time I got back to my laptop this morning, the following webloggers  black envelope

had also weighed in (find more at the foot of this posting):

Larry Ribstein – “Blogging and commercial speech” 

Evan Schaeffer – “KY Lawyers Welcome Here”

John Steele – “Ben Cowgill’s Troubles with the Kentucky Bar: Is a Blog an Ad?”

Bob Ambrogi – “Free Ben Cowgill”

Walter Olson – “Every law-blog post an advertisement?”

Stu Levine – “Nobody’s Really THAT Stupid”

Ken Lammers – “Blog not an ad”

Shubha Ghosh – “Billboards on the Virtual Highway?”

Evan D. Brown “Controversy over legal blogging in Kentucky”

That’s at least thirteen in thirteen hours. This is exactly the response I had hoped for

and expected — vigilance, empathy, and the vital offering of unique perspectives.

Where else but the blogosphere could or would you find such quick, informative,

accessible responses from so many parts of the legal profession?   Nowhere. 


The above posts are not advertising.  I will be collecting the links and sending them on



crossing the grasslands

eight hundred miles

of burma shave signs





                first light

   the anchorman announces,

           “another tragedy”





writers block

a fly & it’s shadow

lifting off the empty page




fridgeNotes  Ed Markwoski,

 “writer’s block” from  Haiku Sun  (Issue X, Jan. 2004) 


update  (June 8, 2005):   I’m going to add more posts on this topic, as I find them.

(Yes, I do love TrackBacks and Technorati.):

George Wallace – “Oh, the Sun Goes Dark for Them Ol’ Kentucky Blawgs”

Stephen Albainy-Jenei –  “Is a Blog an Ad in KY?” [Patent Baristas]

Steven Bainbridge – “Blogging as Advertising?” (he dissents, I reply)

Carolyn Elefant – “Support Freedom of Lawyer Blogging in Kentucky”


lowdown (June 9, 2005):  Sorry.  I have not been able to keep this list complete.

Chronic Fatigue Syndrome is a cruel  master — especially, when you try to work

intensely and long (which is why I decided to stop practicing law in 1997). 



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. 

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