A few months ago an advisory committee for the California State Bar promulgated an interim ethics opinion addressing when lawyers’ blogs should be subject to applicable bar rules governing lawyer advertising.
The impetus behind having bar rules addressing lawyer advertising is generally a reasonable one. The nature of the lawyer-client relationship, the relative imbalance in their respective expertise, and the stress inherent with the sort of situation that would require a lawyer’s assistance makes it important to ensure that lawyers are not misleading or overly aggressive in their solicitation of business. The applicable bar rule regarding lawyer advertising in California is also not especially onerous (although the same may not necessarily be said about similar rules in other jurisdictions).
But a blog is speech, and applying regulation to speech is something that constitutionally can only be done in very limited ways and in very limited circumstances. Yet there is nothing limited about this recommendation. It promulgates a standard that would ultimately catch many, if not most, legal blogs in the California bar’s regulatory net, despite it being unnecessary and chilling to speech that should be beyond government’s reach.
It’s also simply not a good idea that serves the public interest.
At the core of the opinion is the view of the committee that there is a fundamental difference between blog content that exists for purely promotional purpose, which the bar can regulate, and that which is more analytical, which is beyond the bar’s reach. In and of itself this bifurcation isn’t necessary objectionable. The problem is that the committee is not very good at telling which is which, and this appears to be due to a lack of understanding about the technical nature of blogs.
For instance, it ascribes significant meaning to minor things like whether a blog hosts comments, finding that if it does, that is likely a signal that it is a blog intended for analytical rather than promotional purpose. It also uses very small details like linkage to a law firm website or contact information as likely disqualifiers from analytic blog status, even when this sort of promotional information is but a minor footnote to the blog post content and clearly not the focus of the web page it appears on.
Even more perniciously, the committee has decided that if any blog post is deemed to be lawyer advertising, then every other post on the blog should also deemed to be regulatable lawyer advertising as well, even if none of the other posts bear any of the hallmarks that might have identified them as being promotional themselves.
The opinion gives lip service to the idea that while some analytical legal blogs exist in order to enhance the reputation of the blogger, just because that enhanced reputation may lead to commercial benefit does not make the blog promotional as its central purpose in and of itself. But the committee’s eagerness to interpret the most minor details as something that that would require designating the post as promotional means that few blogs will ever be deemed otherwise.
The irony is that ethics rules ostensibly exist to protect the public interest, but this opinion threatens to undermine it. The public is better served by having lawyers use their blogs to demystify the law and help make it more accessible to those governed by it than not, and the profession is better elevated when lawyers can use their blogs to educate their fellow members of the bar (and even, at times, courts themselves) than not. In sum, it is a net positive that lawyers today can so easily share their expertise through legal blogging and something that should be encouraged, rather than deterred by the encroachment of unnecessary regulation, which the committee proposes.
I said as much in a comment I submitted yesterday to the California bar, and I mention this fact mindful of the implication that it, and this post, may suggest I am a competent attorney with a certain expertise in how government regulation intersects with technology. I leave it, however, to readers to decide for themselves if and how this suggestion may or not be relevant to them. The reality is that this matter is certainly one of interest to the profession and the public, and one that I have an opinion on, and that is the reason why I have blogged about it.