Are Blogs "Advertisements" Under the New York Lawyer Advertising Rules?

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...

Comments

[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.