For New York lawyers with blogs, it's the 100 million dollar question: Are our blawgs "advertisements" under the newly promulgated New York lawyer advertising rules, which go into effect on February 1st?
Pursuant to 1200.1(k), "advertisement" is defined as:
(A)ny public or private communication made by or on behalf of a lawyer or law firm about that lawyer or law firm's services, the primary purpose of which is for the retention of the lawyer or law firm. It does not include communications to existing clients or other lawyers.
In my opinion, none of the New York blogs that I am currently aware of are advertisements as defined by the rules, since I wouldn't characterize the primary purpose of said blogs to be the retention of a lawyer or law firm. That may be one of the reasons for the existence of each blog, but it's not the primary purpose.
I would argue that most of the things that lawyers do in the professional arena outside of the office are done for the purpose of networking. And, of course, one of the intended goals of any sort of professional activity outside of the office--be it speaking at a seminar, authoring an article in a legal publication, joining a committee at the local bar association, or publishing a blog--is to obtain referrals and/or new clients. But the retention of clients is certainly not the primary purpose of any of these activities.
In comparison, I think that most people would agree that the primary of television and radio ads, billboard ads, professional websites and yellow page ads is the retention of clients.
Blogs are different from the aforementioned ads because the primary purpose of blogs is the dissemination of information that is separate and distinct from the self promotion that is the essential element of most advertisements. Blogs educate the reader about a subject matter that is unrelated to the self promotion of the blogger. Certainly increased visibility of the blogger is a byproduct of the publication of a successful blog; and as a result of that visibility, one might retain new clients. But, that doesn't mean that the primary purpose of the blog is the retention of clients.
Blogs--at least the New York blogs that I am currently aware of--do not, therefore, constitute "advertising" under the newly promulgated rules. At least, that's my take on it.
But, as we lawyers know all too well, reasonable minds can differ. Anyone out there disagree with me? Agree with me? On the fence? I'd love to hear from you...