Blogs and Attorney Advertising Rules

As the number of attorney-created blogs and websites proliferates, state licensing entities are beginning to consider revisions to the ethics rules governing attorney advertising in order to address these changes in legal technology.  Law.com has an informative article about this issue today, reporting on the New York state bar's activities in this area.  The New York Office of Court Administration just proposed amendments to its advertising rules, which, in the words of the Office, attempt to "bring the rules into the computer age."  A quick review of the rules reveals that some key facts about the Internet and blogging seem to have escaped the New York licensing authorities.  In fact, the proposed rules are a hot topic on the blogosphere right now, with many attorney-bloggers complaining that the rules are unworkable (for a round-up of attorney complaints about the rules, check out some of these links and this ABA Journal story).

What makes the New York rules so controversial?  First, the proposed rules state that an attorney not admitted to the New York bar would still be "subject to the disciplinary authority of this state if the lawyer provides or solicits any legal services in this state."  Many attorneys are concerned that this language could be interpreted to subject any attorney whose blog or website can be viewed in New York to the New York advertising rules.   Next, New York's proposed rules require attorneys to file copies of all "computer-accessed communications" with the state attorney disciplinary committee. Most of us are aware that websites and blogs are updated on a very frequent basis, but the rules do not address whether attorneys have to file updates each time that they modify their websites or blogs.  The proposed rules would also require lawyers to retain copies of all website content for at least one year. 

Here in California, the State Bar has also been busy proposing changes to the Rules of Professional Conduct concerning advertising.  The proposed rules specifically identify law firm and attorney websites as "communications," subject to the general prohibition on false and misleading communications about legal services.  So far, the California changes don't appear to be drawing any fire, perhaps because the proposals appear to acknowledge some of the realities surrounding legal technology.  For instance, the State Bar thought about retaining the current Rule 1-400(F) requirement, which mandates that attorneys retain copies of any communication made by written or electronic media for two years.  Ultimately, the State Bar Commission decided to drop this requirement, agreeing with the ABA Ethics 2000 Commission that this requirement "'has become increasingly burdensome, and such records are rarely used for disciplinary purposes.'"

Public comments on the proposed California rules are due by October 16, 2006.  New York has extended its public comment period to November 15, 2006.  We're sure that New York will get an earful about their proposals from attorneys across the country.  We'll keep you posted about any subsequent amendments to these rules.