Wednesday, October 28, 2009

State bar advertising rules may not apply to blogs

In November 2003, New York malpractice attorney Andrew Bluestone began faxing out copies of his one-page Attorney Malpractice Report. The faxes contained contact information for Mr. Bluestone as well as an essay dealing with some facet of attorney malpractice litigation.

New York solo practitioner Marc Stern received 14 of these faxes between November 2003 and March 2005. He eventually filed suit, alleging that Mr. Bluestone's faxes violated the Telephone Consumer Protection Act of 1991 as well as the Junk Fax Prevention Act of 2005.

In his defense, Mr. Bluestone argued that the faxes were not legal advertisements because the newsletter was an informational message and the contact information was merely an "incidental advertisement."

The trial court disagreed and ruled that the faxes were legal advertisements for Mr. Bluestone's services and awarded Mr. Stern $1,500 for each of the faxes he received.

In June of this year the New York Court of Appeals reversed that ruling, holding that the faxes were informational messages per the FCC and not unsolicited advertisements.

According to Matthew Goldberg of the American Bar Association's Litigation Division, this decision is important to legal bloggers (or blawgers) because it could affect state bar association's attempts to regulate attorney speech on the internet. In fact the Florida Bar has said that websites "cannot be easily categorized as either information at the request of a prospective client...or as advertising in a medium that is totally unsolicited and broadly disseminated to the public."

So, is this blog advertising? Or is it informational? In fact, are all legal blogs advertising or are they a source of information? Should state bar associations be able to regulate the content that appears on a legal blog? More importantly, should state bars be able to regulate the content of any blog that is authored by an attorney - regardless of the blog's subject matter?

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