{"id":3892,"date":"2005-06-09T19:33:16","date_gmt":"2005-06-09T23:33:16","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/formerlyknownas\/2005\/06\/09\/weblogs-aside-when-is-a-lawye"},"modified":"2011-08-05T14:57:39","modified_gmt":"2011-08-05T18:57:39","slug":"weblogs-aside-when-is-a-lawyer-advertising","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/2005\/06\/09\/weblogs-aside-when-is-a-lawyer-advertising\/","title":{"rendered":"weblogs aside, when is a lawyer advertising?"},"content":{"rendered":"
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\"podiumF\" <\/font><\/font>It was great to see all the <\/font><\/font><\/font>support generated<\/font><\/a> yesterday for Ben Cowgill’s <\/font>battle<\/font><\/a> with the Kentucky Attorney’s Advertising Commission. But, Evan <\/font>Schaeffer is correct<\/font><\/a> — we need to act like lawyers<\/em> when approaching <\/font>the issue of whether and when a lawyer’s weblog constitutes advertising <\/font>that falls within attorney discipline rules.<\/font><\/p><\/blockquote>\n<\/blockquote>\n

B<\/em><\/strong>efore taking on the advocate’s role, a lawyer who wants to know whether <\/font>certain activity comes under a rule should first ascertain what the rule covers — <\/font>using traditional statutory construction techniques and precedents — and then <\/font>compare the activity in question with the covered activity. Especially where <\/font>it is speech that it is being regulated, the scope of regulation needs to be well-<\/font>defined. <\/font><\/font><\/p>\n

Here<\/em>, we need to know what the regulators mean by “lawyer advertising.” Using <\/font>Biz-Pop Psych mumbo jumbo about all self-promotion or content<\/a> being “advertising” <\/font>is neither lawyerly nor helpful. (It’s almost like saying that your local Highway <\/font>Dept. has authority over the internet because we use the “information highway” <\/font>metaphor.) Don’t go down that road just because a pied-piper <\/a><\/font>professor<\/a><\/font> wants <\/font>to take you there. Just about everything every human being ever does is, in <\/font>some sense, self-promotion. Advertising is a subset of that larger category. <\/font><\/font><\/p>\n

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\"announcer\" I believe — as explained below, and confirmed by common <\/font>sense — that advertising is communication that is attempting <\/font>to sell products or services, by giving information about the <\/font>provider or his\/her\/its services. It is not<\/em> communication by <\/font>or from a provider that is aimed at educating, or entertaining, <\/font>provoking, persuading (etc.) the recipient on a topic other <\/font>than choosing or using the provider’s services. This means, <\/font>of course, that some parts of a particular item or source of <\/font>“communication” may be advertising while other parts of the <\/font>same source are not (e.g<\/em>., a newspaper, tv broadcast, or even <\/font>a weblog).<\/font><\/font><\/font><\/p>\n<\/blockquote>\n

When asking what lawyer discipline rules mean by “advertising,” it makes <\/font>sense to look at the section-heading under which the rule in question falls, any <\/font>explicit <\/font>definitions, the actual text of the rules, relevant commentary, and any <\/font>guidance <\/font>that might come from other parts of the regulatory scheme. <\/font>Let’s look at the current ABA <\/font>Model Rules<\/font><\/a>. <\/font>Rule 7.2<\/font><\/a> directly addresses <\/font>lawyer advertising, subject to additional limitations in Rule 7.1 and 7.3. Let’s <\/font>see what Rule 7 tells us about the intended scope of lawyer advertising Rules <\/font>(emphases added): <\/font>Rule 7 and all of its subsections are captioned “<\/font>Information About Legal Services<\/em><\/font><\/font><\/a>.” <\/font>Rule 7.1<\/font><\/a> is denominated “Communications Concerning a Lawyer’s Services<\/em>” and <\/font>it states: “A lawyer shall not make a false or misleading communication about the <\/em><\/font><\/font>lawyer or the lawyer’s services<\/em>.” <\/font><\/font>The first <\/font>Comment to Rule 7.1<\/font><\/a> says:<\/font><\/font><\/font><\/p>\n

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[1] This Rule governs all communications about a lawyer’s services, <\/em><\/font><\/font>including advertising<\/em> permitted by Rule 7.2. Whatever means are <\/font><\/font>used to make known a lawyer’s services<\/em>, statements about them must <\/font>be truthful.<\/font><\/font><\/font><\/p>\n<\/blockquote>\n<\/blockquote>\n

Rule 7.2<\/font><\/a> is denominated “Advertising.” It begins “Subject to the requirements of <\/font>Rules 7.1 and 7.3, a lawyer may advertise services. <\/em><\/font><\/font>The first <\/font>Comment to Rule 7.2<\/font><\/a> starts:<\/font><\/font><\/font><\/p>\n

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[1] To assist the public in obtaining legal services, lawyers should be <\/font>allowed to make known their services<\/em> not only through reputation <\/font>but also through organized information campaigns in the form of <\/em><\/font><\/font>advertising. Advertising involves an active quest for clients, . . .”<\/font><\/em><\/font><\/font><\/p>\n<\/blockquote>\n<\/blockquote>\n

Rule 7.3<\/font><\/a> is demoninated “In-Person Contact with Prospective Clients.” It starts: \"noSolitS\" <\/font><\/font><\/font><\/p>\n

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“A lawyer shall not by in-person, live telephone or real-time electronic contact solicit <\/em><\/font><\/font>professional employment<\/em> from a prospective client when a significant motive for the <\/font><\/font>lawyer’s doing so is the lawyer’s pecuniary gain . . .”<\/font><\/font><\/font><\/p>\n<\/blockquote>\n<\/blockquote>\n

Note<\/em>: Washington, D.C. has decided to eliminate totally Rules 7.02 and <\/font><\/font>7.03. It relies instead on <\/font>Rule 7.01<\/font><\/a> to cover all Communications <\/em><\/font><\/font>Concerning a <\/em>Lawyer’s Services<\/em>” — including advertising. It has, <\/font><\/font>however, incorporated the first Comments under Model Rules 7.02 <\/font>and 7.03, excerpted above, in its Comments to Rule 7.01.<\/font><\/p><\/blockquote>\n

Plainly, the Model Rules are focused on communications that are directly<\/em> attempting <\/font>to tell the public about a lawyer’s services or competence in order to entice them to <\/em><\/font>use those services<\/em>. The Model Rules do not have a separate definition for “advertise.” <\/font>That clearly suggests that the <\/font>common meaning<\/font><\/a> is intended:<\/font><\/font> <\/font><\/p>\n

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“<\/strong>To make public announcement of, especially to proclaim the qualities <\/font>or advantages of (a product or business) so as to increase sales.” (The <\/em><\/font>American Heritage Dictionary<\/em>, 4th Ed., 2000)<\/font><\/font><\/p><\/blockquote>\n<\/blockquote>\n

That common meaning is very consistent with the <\/font>Comment<\/font><\/a> to Rule 7.2, which equates<\/font><\/font> advertising with “an organized information campaign” and an “active quest for clients.” <\/font>The older Code of Professional Responsibility (<\/font>used in New York<\/font><\/a>) has a similar thrust. <\/font>DR 2 101 on “Publicity and Advertising” prohibits “false, misleading or deceptive” <\/font>communications, and “puffery, self-laudation, or claims regarding the <\/em>quality of the <\/em><\/font>lawyers’ legal services<\/em>.”<\/font><\/font><\/p>\n

\"noYabutsSN\" If I’m beating a dead horse, it’s because so many observers seem to be ignoring it. <\/font>My conclusion about the scope of “advertising” under the Model Rules is underscored when <\/font>we look at the broader picture of the Rules — most important, at the <\/font>Preamble<\/font><\/a>, which is <\/font>a list of “The Lawyer’s Responsibilities.” Responsibility No. 6 begins:<\/font><\/font><\/font> <\/font><\/p>\n

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“[6] As a public citizen, a lawyer should seek improvement of the law, <\/font>access to the legal system, the administration of justice and the quality <\/font>of service rendered by the legal profession. As a member of a learned <\/font>profession, a lawyer should cultivate knowledge of the law beyond its <\/font>use for clients, employ that knowledge in reform of the law and work <\/font>to strengthen legal education.”<\/font><\/font><\/font><\/font><\/p><\/blockquote>\n<\/blockquote>\n

A reading of the word “advertise” to include efforts by a lawyer to educate the public <\/font>or seek improvement of the law would make no sense — even if such tasks by their <\/font>very nature may enhance a lawyer’s reputation and indirectly gain clients. It would <\/font>be counter-productive, if not impossible — given what we know about the mixed <\/font>motives of human beings — to attempt to figure out the strategy behind a lawyer’s legal <\/font>scholarship, CLE and public education activites, volunteer services, or reform efforts. <\/font>The Advertising Rules are there to prevent injury to the public, not to play “Gotcha!” <\/font>with a lawyer’s motives.<\/font><\/font><\/font><\/font><\/font><\/p>\n

What about Kentucky?<\/strong> Kentucky has explicitly defined what it means to <\/font>“advertise:”<\/font><\/font><\/font> <\/a><\/font><\/font><\/p>\n

7.02<\/font><\/a> “advertise or “advertisement” means to furnish any written, <\/font>printed or broadcast information or any other communication <\/font>containing an attorney’s name or other identifying information, <\/font>except .<\/em> . .<\/font><\/font><\/font><\/p><\/blockquote>\n

\"not This seems much broader than Model Rules cited above. However, as Evan Schaeffer <\/font>has noted<\/font><\/a>, the exceptions are the sort that show the importance given to scholarship,<\/font> education, and publishing. (Unfortunately, self-published<\/em> communications are not given <\/font>an explicit exemption.) If I were trying to show the intended, limited scope of Kentucky’s <\/font>lawyer advertising rules and definition, I would point out to the Advertising Commission <\/font>and its Board that Kentucky’s Rules of Professional Conduct contain all the other limits<\/em> <\/font>on the definition of advertising discussed above (with their focus on communications <\/font>about the lawyer’s services). To wit,<\/font><\/font><\/font><\/p>\n