Will Legal Blogs Be Construed as Advertisements?

October 26, 2006

by Martin Magnusson, Editor-at-Large
In 1977, the Supreme Court handed down a seminal decision in Bates v. State Bar of Arizona. The case involved two lawyers who placed an advertisement in a daily newspaper. At the time, the State Bar of Arizona had a rule that prohibited lawyers from advertising their services. In Bates, the Supreme Court held that this rule violated the First Amendment. Justice Blackmun, who wrote the majority opinion, argued that commercial speech served the interests of consumers. He noted that

[a]dvertising, though entirely commercial, may often carry information of import to significant issues of the day. And commercial speech serves to inform the public of the availability, nature, and prices of products and services, and thus performs an indispensable role in the allocation of resources in a free enterprise system. In short, such speech serves individual and societal interests in assuring informed and reliable decisionmaking.

Since the Bates decision, legal advertising has proliferated. Indeed, one need only open the yellow pages or turn on the television to find lawyers selling their services. Such advertisements, though, must comport with the strictures of professional responsibility. In their effort to police lawyers' advertisements, state bar associations frequently require lawyers to submit copies of their advertisements to its disciplinary committee for review, often with a filing fee.
Recently, New York's Administrative Board of Courts has proposed a new set of rules that would have a tremendous impact on legal blogs. Touted as bringing the rules of professional responsibility into the Internet age, these rules would construe legal blogs as advertising per se. As such, lawyers would be required to print, store and forward hard copies each and every time that they update their blog.
Greg Beck of the Public Citizen Litigation Group notes that

[i]nstead of protecting consumers . . . the proposed rules will burden completely truthful and non-misleading communication by attorneys, and will serve no purpose other than to deprive consumers of useful information about their legal rights, protect established law firms from competition, and render many aspects of the Internet largely unusable for New York attorneys.

Criticism of the proposed rules, though, is far from universal. New York State Bar Association president Mark Alcott has noted that

[f]or a long time there was a view that nothing could be done because the [U.S.] Supreme Court said lawyers could advertise and it was assumed that was the final word. But while lawyers are free to advertise, there can be reasonable restraints on those advertisements. It is long overdue that such restraints would be imposed, and enforced, in New York. We need to study it in depth, but we are gratified that the presiding justices have proposed the new rules and that a number of recommendations by the association were included.