To Blog, or Not to Blog...Advertising is the Question

Law blogging was first practiced by law scholars and by attorneys at smaller firms; these early bloggers eventually influenced attorneys at larger firms and more scholars. As a result, a number of states are currently reviewing their law firm advertising regulations. Kentucky regulators recently checked up on a lawyer's weblog to determine whether it should be defined as advertising, a call that would require a filing fee of $50 for each "advertisement" and another $50 for every future update to the blog.

State officials want to protect Internet users from questionable, law-related marketing ploys disguised as free and legitimate information sources. Complicating matters, they need to do this while promoting the rights to freedom of speech and information. The challenge states are facing now is finding and establishing a concrete definition of what is considered advertising.


New York's review of law advertising rules has sought to restructure the system to apply to "written advertisements and solicitations and computer-accessed communications," which includes everything from print ads to Internet pop-ups to instant messages (IMs). These potential changes could be enacted once the comment period, which the state recently extended. The new rules would apply not only to New York firms but also to all out-of-state attorneys who advertise in the state.

If New York's new regulations pass, law firm bloggers will have to file their "advertisements"—or, rather, each blog post—with a disciplinary committee for a year, explaining changes and posted comments. New York may even require that each blog include a disclaimer phrase, such as "Attorney Advertising."

Indiana, Rhode Island, and the State Bar of California have also been influenced to begin reviewing their advertising regulations. Others, like the states of Missouri and Texas, have already made adjustments. According to Micah Buchdahl, an attorney and law firm marketing consultant, state officials' specific opinions related to blogs have yet to surface, leaving attorneys in the dark as to what has become unacceptable.

Some lawyers, like Catherine Kirkman, are taking no chances. Kirkman, a partner at Wilson, Sonsini, Goodrich & Rosati who publishes The Silicon Valley Media Law Blog, in which she discusses decisions regarding media law and related resources and opinions, said the difference between her blog and others is that she has a detailed disclaimer at the beginning, stating that it is not intended as advertising and does not represent the views of her law firm.

Kevin O'Keefe, President of LexBlog, a law blog consulting company, suggested that a disclaimer stating the site's purpose and content is a good idea: "If I'm a lawyer putting something up on the Internet, and I have contact information and brief information of what I do, someone could make a compelling argument that I'm putting information on there as a way of marketing my practice," he said.

Other experts, like Larry Ribstein, a professor at the University of Illinois College of Law and author of the law blog Ideoblog, say that a statement of purpose may not make a difference in determining whether a blog should be considered commercial speech or not.

And, finally, some agree with David Giacalone, who said, "Calling weblogs advertising can only confuse the meaning of both terms. I believe weblogs should more precisely be deemed publicity or self-promotion or public relations. They are not 'advertising' as the term is commonly used, and I can see nothing to gain from blurring the concepts." The debate will continue until some substantial decisions are made by state officials.