« Prosecutors Behaving Badly | Main | Now I Remember Why I Don't Miss Law School »

January 12, 2007

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d834516c2469e200d83464390769e2

Listed below are links to weblogs that reference Are Blogs "Advertisements" Under the New York Lawyer Advertising Rules?:

» Blogs as Advertisement and Ethical Concern? from Transcending Gender
Nicole Black of Sui Generis wrote about an issue of interest to legal bloggers: do blogs act as advertising? Black considers whether blawgs are advertising under the newly promulgated New York lawyer advertising rules, which go into effect on Fe... [Read More]

» Do Blogs Fit Under NY's New Ad Rules? from Legal Profession Blog
Posted by Alan ChildressThat is certainly a question that will take more than one post or one blog to answer, and the answer may have to come from the courts, but here are some thoughts from NY lawyer-blogger Nicole Black [Read More]

» NY Rules on Advertising - When Is A Blog Just A Blog? from Build A Solo Practice, LLC
Nicole Black of Sui Generis and I are having a Comments Section debate on whether under the new New York Rules effective February 1, 2007 discussing what is and is not lawyer advertising, blogs are advertising. The Legal Profession Blog [Read More]

Comments

Feed You can follow this conversation by subscribing to the comment feed for this post.

Susan Cartier Liebel

You pose an interesting question. For our own sakes we would like to believe that blogging isn't advertising under the new rules because of the burdens we would endure. But the reality is a little different. If you are doing a blog in lieu of a website and/or yellow pages and you are optimizing search engines so your blog will appear on the first page of Google and you know that 70+% of all people today will use the internet to find you for legal services can you successfully argue that the primary purpose of the blog is not to solicit new business? Just because it is education-based marketing for the most part and not the typical "in your face" message of "why you should hire me" doesn't change it's primary purpose. I don't agree with the new rules but I'm just not sure they don't apply to blogs.

NBlack

Susan,

Under your argument, nearly anytime that a lawyer does anything in the public realm, it would constitute "advertising". For example, an article by a lawyer in the local newspaper about a specific legal issue would constitute advertising under your analysis.

And, in my opinion, the drafters of the rules listened to the very valid comments submitted re: the overly broad definition of "advertising" in the proposed rules and intentionally narrowed that definition so as not to include attorney communications that clearly are not made with the *primary* purpose of retaining clients.

Anytime that a lawyer appears in public, one of the goals is to increase visibility and name recognition in the hopes of getting new clients. But that doesn't mean that the primary purpose of the appearance is to retain clients.

For that reason, I think that your analysis is incorrect. If your argument was correct, then anything that lawyers did in the public realm would constitute advertising under the new rules.

And, as I've said in prior posts, when I attended a seminar in August at which a number of the drafters of the rules spoke, it was made quite obvious to us that the intent of the rules was not to label any and all attorney discourse in public as advertising or to interfere with educational and scholarly discourse, but rather the intent behind the rules was to prevent and regulate certain types of (what they deemed to be) unprofessional and/or misleading communications by lawyers for the benefit of the consumers. In fact, I was told by one member of the panel that blogs were not even on their radar when they drafted the defintion of "advertising".

The NY blogs that I'm aware of simply do not fall under the category of conduct that I believe that the drafters were seeking to regulate. And, the blogs don't fall under the revised and final definition of advertising. ALthough the blogs certainly increase awareness of the blogger's name, the primary goal of the blogs is not to retain clients--it's to provide information and legal analysis to the blog's readers.

Furthermore, a number of blogs, such as my own, are targeted toward lawyers, not legal consumers. That is yet another reason that at least half of the NY blogs that I am aware of don't fall under the defintion of "advertising".

In fact, my blog is specifically targeted toward lawyers, and not legal consumers, since I only accept work form other lawyers. Legal consumers, the intended beneficiaries of the new rules, are simply not my target market.

Accordingly, in my opinion, my blog clearly falls within the "communications with other lawyers" exception to the definition of advertising, as do a number of other NY law blogs.

NBlack

I've given the point that you raised a bit more thought. And, here's my what I came up with:

I think that my argument boils down to the idea that the definition of "advertising" includes communications with *the* primary purpose of retention of the lawyer/firm. Not *a* primary prupose, but *the* primary purpose.

*A* primary purpose of the NY blogs that I am aware of is arguably the retention of clients. But, I believe that that is not *the* primary purpose of any NY blog that I am currently aware of.

In my mind, the use of "the" rather than "a" makes all the difference in this context.

Susan Cartier Liebel

Nicole,
I appreciate your perspective and it is well-considered. My argument was if you have no other website presence, no other means with which a prospective client can find you BUT a blog, even if the blog is education based (and it is not geared towards other lawyers) then it would be a difficult argument to say its primary purpose isn't advertising/soliciting for prospective clients. If you do multiple types of marketing/advertising including traditional advertising, yellow pages, website and a blog is just part of your arsenal, then clearly you could argue the blog's primary purpose is not to attract new business. If it does it is still secondary to the mission. The same goes for seminars which could provide new clients but the primary purpose is for education and to establish yourself as an authority. I hope that clarifies my position.

NBlack

While I can appreciate your argument, it seems to me that it unduly penalizes solo practitioners and small law offices who might be unwilling or unable to invest in expensive marketing and prefer to instead rely on word of mouth referrals.

And, can't either firm--that is one that utilizes expensive marketing and one that does not--both have the same motivation for starting a blog. In other words, the primary intention for both could be to discuss legal issues, or it could be to market the firm. (And, going back to my prior comment--*a* primary purpose for both could be to market the firm and *a* primary purpose for both could also be to discuss legal issues. But, I digres...).

That one firm utilizes expensive marketing and the other does not has not bearing, in my opinion, on the issue of whether a blog's sole purpose is to retain clients.

That may be one factor to consider, but it is certainly not a decisive factor, in my mind.

The comments to this entry are closed.

My Photo

About This Blog

Sui Generis Partner

Other Sui Generis Sponsors





Receive Updates Via Email

disclaimer

  • This site is intended purely as a resource guide for educational and informational purposes and is not intended to provide specific legal advice. This site should not be used as a substitute for competent legal advice from a professional attorney in your state. The use and receipt of the information offered on this site is not intended to create, nor does it create, an attorney-client relationship.

    Please feel free to contact me via e-mail or otherwise. However, please be advised that an attorney-client relationship is not created through the act of sending electronic mail to me.

    The comments on this blog are solely the opinions of the individuals leaving them. In no way does Legal Antics or Nicole L. Black endorse, condone, agree with, sponsor, etc. these comments.

    Further, any information provided on this blog or in the comments should be taken at your own risk.