In response to our federal complaint, the lawyer blogging nation sent both their well-wishes and skepticism. We’ve also seen some welcomed press about our fight against the Louisiana State Bar Association’s new advertising rules, including an article from the ABA Journal (here) and the National Law Journal (here).
Unfortunately, however, there has been a bit of confusion about our complaint with the new advertising rules, and this brings me to the question of this post:
Do the Louisiana Advertising Rules “Ban Blogs?”
The short answer: No. The long answer: Well, blogs are implicated.
Rule 7.6(b) exempts a lawyer’s or law firm’s website from the costly evaluation process. A lawyer’s blog would therefore presumably be considered under the purview of 7.6(b), and not required to go through the evaluation process.
Websites and blogs (even if exempt from evaluation) will still be implicated by the new rules, as they are subject to the restrictive (and possibly unconstitutional in itself) Rule 7.2.
By exempting the law firm’s website, Louisiana skirted the issue of whether to specifically regulate lawyer blogs. But since 7.2 applies to blogs, it begs the question: Can the government regulate our blogs just as they regulate our “advertisements?”
A component of this blog’s purpose is to promote the idea that “blogging” and “advertising” do not go hand-in-hand, and that if the government is going to regulate both, it must at least distinguish between the two.
This important issue, however, will be addressed further on this blog, and through the proceeding itself.
Suffice to say for now, however, that the new advertising rules do not outright restrict an attorney’s ability to blog. Thus, the above-stated “short answer.”
So What’s The Real Problem?
Wolfe Law Group’s real complaint with the Louisiana lawyer advertising rules are two-fold:
1) The rules restrict attorneys from advertising through certain mediums, and specifically, through online media that limits character counts.
This argument concerns real red-blooded traditional advertisements. Since the new rules require certain information to be contained within every ad, they restrict or eliminate an attorney’s ability to communicate a message through Google Ads, Google Mobile Ads, and similar online advertisements, because the required information simply won’t fit.
2) Rule 7.6 (d) subjects all “computer-accessed communications concerning a lawyer’s or law firm’s services” to the evaluation process, and all advertising regulations.
In the Louisiana State Bar Association’s Handbook on Advertising, this is explained to include “all computer-accessed communications concerning a lawyer’s or law firm’s services, other than the Web site or home page of the lawyer or law firm.”
The implications of this rule is at the heart of the federal suit.
First, the definition of “advertisements” as all “computer-accessed communications concerning a lawyer’s or law firm’s services” is simply too broad, and it includes things that are not advertisements and – possibly – not commercial speech.
Second, 7.6(d) would seemingly apply to:
- Comments by an attorney on the blog posts of others, on sites that are not owned by them;
- “Answers” or legal information given to the public on sites such as Avvo or LawGuru;
- Posts on micro-blogging platforms like Twitter, which includes information posted by an attorney on his or her own profile page, or possibly on the face of other users’ pages;
- Participation by an attorney in podcasts, or online videos, wherein the discussion “concerns the lawyer’s services,” if that podcast or online video appears off the lawyer’s website;
- “Guest Blogging;”
- Posting of documents on services like JD Supra (incidentally, this could possibly be considered forbidding since it is an “advertisement” that “resembles a legal pleading” in violation of Rule 7.2(c)(K));
- Facebook pages (and changes thereto), LinkedIn profiles (and changes thereto);
- The appearance of your blog posts across the web on other websites via RSS feeds; etc.
The new Louisiana advertising rules do not “ban blogging.” However, the rules are so broad that they implicate an attorney’s right to freely speak about his or her trade, to participate in online social communities, and to communicate about his or her services though online media not “on the lawyer’s website.”
The attempt by Louisiana to equate “advertising” with “communicating about the lawyer’s or law firm’s services,” is stretching the U.S. Supreme Court’s commercial speech doctrines to include non-commercial speech by attorneys. And while the rules do not bar blogging per se, the rules do interfere with the blogger, and the blogger’s ability to harness the power of the Internet to communicate with clients, colleagues and the public.
Learn more about the fight against the Louisiana State Bar Association by subscribing to this blog’s RSS Feed.
You can also read the Louisiana lawyer advertising rules at lsba.org here.