Posted by Eugene Volokh:
Kentucky Lawyers Must Pay $50 for Each Post They Blog,
http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118200009
and submit it for preapproval 30 days before they post it: That's what
[1]Kentucky Rules of Professional Conduct seem to literally say. Rule
7.02 says, in relevant part:
For purposes of this Rule, the following definitions shall apply:
(a) "Advertise" or "advertisement" means to furnish any written,
printed or broadcast information or any other communication
containing an attorney's name or other identifying information,
except the following: . . .
That would literally cover any op-ed, law review article, book, blog
post or anything else that the lawyer writes (unless he does so truly
anonymously). Fortunately, exception (a)(7) (the only one potentially
relevant to such situations) specifically exempts
[a]ny communication by a lawyer to third parties that is published
or broadcast by a third party who is not in any way controlled by
the lawyer, and for which publication or broadcast the lawyer pays
no consideration
-- which nicely exempts most traditional writings, but not
self-published writings. Until the advent of blogging, this posed
relatively little problem, but since blogs are self-published, any
blog post that identifies the lawyer-author becomes an
"advertisement."
And for any "advertisement" that goes beyond certain boilerplate
information (name, address, fee schedule, certain credentials, and the
like) would then have to comply with Rule 7.05(b), which says:
Three (3) copies of a fair and accurate representation of any
advertisement that does not qualify under Rule 7.05(a) shall be
delivered to the [Kentucky Attorneys' Advertising] Commission, c/o
the Director, at the Director's office, during normal office hours
on a work day, no fewer than thirty (30) days before such
advertisement is used. . . . A filing fee of $50.00 for each
advertisement filed under this subsection shall accompany each
filing and the thirty (30) day period in which the Commission must
respond shall not begin until the filing fee has been received by
the Commission c/o the Director at the Director's office. In the
event the Commission or any member thereof, or their designee, does
not issue a notice of proposed disapproval under Rule 7.06 by the
end of the 30th day following receipt of such advertisement and
filing fee, the advertisement shall be deemed approved. . . .
So if you're a lawyer in Kentucky, blogging from Kentucky (see Rule
7.01), and you want to blog using your real name, you must submit each
blog post 30 days before you publish it, and pay $50 per post. (Each
post is a separate instance of "furnish[ing] . . . written, printed or
broadcast information.")
And in fact, the Kentucky Attorneys' Advertising Commission is
seriously considering applying the rule exactly as written, according
to [2]Ben Cowgill's Legal Ethics Blog:
I submitted an information copy of this blog to the Commission on
the very day it was launched so that we could proceed to discuss
any question about how it should be treated under the regulations
mentioned above. We have not yet reached a final resolution, but I
have received a "green light" to continue posting, without paying a
filing fee for each post, until the matter is resolved. . . .
It is my sincere hope that we will be able to agree on a sensible
interpretation of the regulations that permits other Kentucky
lawyers to launch law-related web logs. Several Kentucky lawyers
have told me that they are very attracted to the idea of creating
web logs as on-line journals about the areas of law in which they
practice. But each of them has expressed concern about the filing
fee mentioned above. I am hopeful that the time and attention I
have devoted to the issue will resolve the problem for everyone and
pave the way for other web logs by Kentucky lawyers. . . .
I hope the Commission quickly recognizes that it has no business
restricting lawyer speech this way. Commercial advertising may indeed
be restricted in certain ways, perhaps including these presubmission
and filing fee requirements. But lawyer speech that isn't advertising
-- such as a lawyer's self-published book, or a magazine run by a
lawyer in which the lawyer has a publisher's column -- is fully
protected. (I realize that any statement by anyone who's in any line
of business may be indirectly a means of promoting his business; but
that can't be enough to deny full First Amendment protection to books,
scholarly articles, op-eds, and the like that are published by any
lawyer, doctor, engineer, or business owner.)
Even in the past, this made the rules somewhat overbroad. But in the
era of blogging, where self-publication is a routine form of fully
protected speech, and the presubmission and payment requirements are
especially burdensome, the unconstitutional overbreadth of the
restriction is especially glaring.
Thanks to [3]David Giaccalone (f/k/a . . .) for the pointer.
References
1. http://www.law.cornell.edu/ethics/ky/code/KY_CODE.HTM
2. http://cowgill.blogs.com/legalethics/2005/06/im_back.html
3. http://blogs.law.harvard.edu/ethicalesq/2005/06/07#a3949
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