Singularity Law

A controversy is currently swirling around whether a blog written by a lawyer should be subject to state rules on attorney advertising. The controversy arose in response to a proposal from a committee created by New York State’s Administrative Board of Courts, that would include “computer-accessed communications,” such as blogs, to New York’s definition of legal advertising, and therefore make it subject to state scrutiny.

The proposal also “suggests” that the state’s code of professional responsibility should extend the court’s jurisdiction to out-of-state legal advertising that appears in New York. Which means that any lawyer who writes a blog, regardless of where he or she is located, and whether or not the blog is targeted to clients in New York, would be subject to the state’s rules.

The proposal would require lawyers to file copies of their “computer-accessed communications” with the New York attorney disciplinary committee in the appropriate judicial department of the state, and would require lawyers to retain copies of all written advertising, including web sites, blogs and other communications that may be accessed by computer, for at least one year.

Lawyer communication is printed publications, like this newsletter, are generally considered to be free of bar association control under first amendment principles. Should blogs be viewed differently? Should it matter that you decide to self-publish your thoughts and ideas, rather than run them through a third party publisher?

The courts have traditionally been concerned about government control over what is said online. Perhaps the most often quoted statement concerning the first amendment and the Internet is from the trial court’s opinion in American Civil Liberties Union v. Reno, 929 F. Supp. 824, 833 (E.D. Pa. 1996):

“[T]he Internet may fairly be regarded as a never-ending worldwide conversation. The Government may not . . . interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from government intrusion.”

While it is certainly an important goal to protect consumers from fraud, going after legal blogs is not the right way to do it. There are plenty of laws that apply to deceptive advertising, consumer fraud and misrepresentations. There is no reason to single out legal blogs as somehow outside of traditional first amendment protection and try to subject them to unnecessary and, in the end, counterproductive, rules.