Professor Steven Bainbridge, although sympathetic to the opposition to the Kentucky statute ("My own take on this is that restrictions on advertising by lawyers is stupid, anti-competitive, and ought to be a clear violation of the First Amendment. But the Supreme Court disagrees, having given virtual child porn greater constitutional protection than advertising by lawyers.") nevertheless feels that lawyers who blog are entitled to no exemption from the statute. His conclusion is that:
Once you accept that advertising by lawyers can be regulated, it's not at all clear to me that blogging ought to get a blanket exemption from the lawyer advertising rules. It's clear that many lawyers see blogging as a marketing device.In an extended posting, Dave responded to Bainbridge and, as updates to his original posting, Bainbridge replied.* * * * *
There is a distinction between blogs that happen to be written by lawyers and lawyer marketing blogs, of course, but even if you buy David [Giacalone's] distinction between professional self-promotion and advertising, it's hard to escape the conclusion that at least some of the latter should be deemed advertising. If you don't buy David's distinction, of course, it would seem that most lawyer marketing blogs are advertising.
As I see it, that Bainbridge fell for what I would call the "Charlie the Tuna" fallacy. That is, he has confused non-specific marketing, which promotes a person or firm as being of high repute or ability in general (i.e., that the person or firm has good taste), with advertising, which promotes a service, service provider, or product as being valuable for achieving a specific goal (i.e., that the service, service provider, or product tastes good). The distinction goes to the heart of the problem that the Kentucky rule was designed to address. Let me highlight the issue by example
Currently, late night cable television seems to be innundated with advertisements for firms that purport to be able to settle delinquent tax obligations for pennies on the dollar. Clearly, these are advertisements, focused and directed to conveying the message "You have this problem and I can solve it." The Kentucky rule is designed to address this sort of advertising in order to prevent various undesirable outcomes.
In the case of tax delinquency advertisements, the advertisements seem to promise far more than they can deliver. I am also aware that there seems to be a sense that they are run by fast buck operators. While I don't know whether this is, in fact, the case, it is the possibility of having fast buck operators prey on desperate, but unsophisticated laypeople that provides one of the underlying rationales for the Kentucky regulatory scheme. The other significant rationale is that advertising will encourage the filing of numerous baseless claims and lawsuits. (It's not important for this discussion whether these underlying assumptions are correct or whether the cure for the alleged disease is appropriate.)
On the other hand, for instance, while I have posted on this weblog concerning various legal issues that I deal with in my representation of clients, my discussions have concentrated on the legal issues presented in various cases, IRS pronouncements, etc. My postings are not designed to encourage the use of any specific services that I offer.
Going further, of course, some (many?) of my posts are arguably not "legal specific" at all. By way of example, I have posted on various tax policy issues, focusing primarily on the effects of various proposals and of the current tax arrangements on income distribution. However, in a broad sense, all of these postings constitute marketing, because they demonstrate (I hope) that (i) I keep current on legal developments and (ii) I possess the writing and intellectual skills necessary to be a successful practitioner. Yet, this weblog does not present the possible social ills that the Kentucky arrangement was designed to protect against, since it does not lend itself to either the "overselling" of my services or the fomenting of litigation.
I believe that most legal weblogs fall into the same category as mine. That is, to a greater or lesser degree, they're marketing their authors, but they are not advertising the services of their authors. I think that Bainbridge makes his mistake by failing to recognize that all advertising is marketing, but not all marketing is advertising.
A final war story to underline the point.
I was an expert witness in a legal malpractice case. On my professional biography there is a mention of a letter to the editor of the New York Times that I had written. The topic had nothing to do with business or tax law. The attorney representing the other side asked why I had included a reference to the article in my professional biography. I replied that I believed it was significant because it illustrated, in a small way perhaps, that I possessed certain analytical skills that reflected on my professional abilities. In other words, like Charlie, I had good taste even if, especially from the questioning attorney's view in that case, I didn't taste good.