Proposed Attorney Advertising Rules Could Place Restrictions on Web Logs

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The New York Sun

In the past week, attorney Martin Schwimmer has posted items about jewelry packaging, a Jewish festival called the “Hard Lox Café,” and several other offbeat news items on his Web log, “The Trademark Blog.” For Mr. Schwimmer, a partner at a boutique law firm in Westchester County, the legal blog has been a time-consuming activity for the last four years. It is also a good marketing tool that is able to “magnify a small voice,” he said.

So, does the blog constitute an attorney advertisement? It would under a literal reading of several proposed restrictions on attorney advertising in New York, several legal bloggers said yesterday.

Mr. Schwimmer and others are wondering whether their blogging will be subject to the various rules, which could dictate that he run a disclaimer across the top of his blog and require him to mail copies of each posting to the state court system.

The proposed rules, announced in June, are intended to protect consumers from misleading advertisements and to sanction unseemly and aggressive forms of advertising such as the solicitation of plaintiffs in the wake of major disasters.Among other things, the rules would require attorneys to submit advertisements for review by a court disciplinary committee.

Critics of the proposed rules say many legal and scholarly blogs falls within the definition of advertising used in the new rules.

Those rules broadly define an attorney advertisement as “any public communication made by or on behalf of a lawyer or law firm about a lawyer or law firm, or about a lawyer’s or law firm’s services.”

“I doubt that any of this is a deliberate attempt by the New York courts to suppress lawyer blogging,”a professor of law at UCLA who is a leading blogger on legal affairs, Eugene Volokh, recently wrote on his blog, the “Volokh Conspiracy.” “It sounds like they’ve just inadvertently defined ‘advertisement’ too broadly. But unfortunately the language of the proposal is indeed very broad, even if the drafters’ intent was too narrow.”

The rules would amend the state’s code of professional responsibility for attorneys. The state’s Office of Court Administration is soliciting feedback on the proposed rules until November 15. At that time, leaders of the state court system will decide whether to adopt them.

“The intent of the new rules is to increase professionalism and accountability within the profession,” the spokesman for the state’s Office of Court Administration, David Bookstaver, said. “Was the new Internet world considered? Was blogging considered? I don’t know.”

Mr. Bookstaver noted that the period for public comment, originally set to end this month, had been lengthened.

“It’s because of these various issues — where things crop up that may not have been fully vetted — that we are extending the period for public comment,” he said.

The rules do exempt submissions to publications, although whether a blog entry counts is open to debate, several attorneys said.

Taken at face value, the proposed rules would require attorneys to send copies of blog entries to the disciplinary committee, a Washington, D.C.-based blogger, Greg Beck, said. It would also require lawyers to print the words “Attorney Advertisement” in large letters on their blogs.

Mr. Beck, of the Public Citizen Litigation Group, posted these concerns and others two weeks ago on a blog sponsored by the Public Citizen’s Consumer Justice Project. His posting prompted Mr. Volokh and others to take up the topic.

Mr. Schwimmer estimates that he posts on average of about 1,000 comments a year on his blog.

“If I have to make a onetime annual filing of every page of my blog that will be a burden,” Mr. Schwimmer said. “But if that’s the law then that’s the law,”he said.

Mr. Schwimmer said an alternative reading of the rules would require him to mail in each individual blog entry shortly after he entered it. That, he said, “would be impossible to comply with.”

While Mr. Schwimmer acknowledged that his legal blog certainly serves an advertising function, he said it would be a mistake to categorize it together with the sort of attorney advertisements that are placed on matchbook covers or heard on the radio.

“The blog is a marketing effort, but it is in the traditional manner of lawyer advertisements — lawyers give speeches, write articles, and lecture on the law,” Mr. Schwimmer said.

The new rules, Mr. Schwimmer said, could conceivably affect attorney-bloggers who do not need to solicit clients, such as public defenders.

An assistant federal defender in Manhattan, Yuanchung Lee, said he and other bloggers who review federal appeals decisions have not considered whether the proposed rules would apply to their blogs.

“I didn’t think this affects us, although maybe it does,” Mr. Lee said. When asked about the interest the question had sparked on several leading blogs, Mr. Lee responded: “Strange questions are raised in the blog world”

Even if the restrictions are never enforced for blogs, the existence of the rules may be enough to scare some attorneys away from posting personal opinions or legal analysis on law blogs, Mr. Beck said.

“If a blogger, who is an attorney, isn’t sure whether a blog is covered under the rules,” Mr. Beck said, “that attorney is not going to risk losing a license to practice law. When your livelihood depends on it, not many attorneys would risk running into the rules.”

The New York Sun

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