Wednesday, June 08, 2005


Nobody's Really THAT Stupid

About a week and a half ago, I posted comments concerning perceived intellectual shortcomings of the Maryland State Bar Association's Committee on Ethics. This evening, Dave Giacalone at f/k/a reported the action taken by the Kentucky Attorney's Advertising Commission against Ben Cowgill's Legal Ethics blog. By comparison to Kentucky, Maryland's ethics rules are a paragon of enlightenment.

According to Cowgill, Kentucky requires that lawyers "submit a copy of [any] advertisement [they create] to the Attorneys' Advertising Commission, along with a filing fee of $50.00. In the past, the Commission has interpreted those requirements to mean that the lawyer must pay a filing fee of $50.00 each and every time the content of the advertisement is modified. " Apparently, the Commission is considering whether each blog by a lawyer constitutes an advertisement and whether every blog posting by a lawyer is a separate "modification" of that advertisement. If it adopted the latter position, every blog posting would require making a payment of fifty bucks to the Advertising Commission.

As things currently stand, Cowgill will continue to post without fear of retribution while the Commission takes the matter under advisement:
I have received a "green light" to continue posting, without paying a filing fee for each post, until the matter is resolved.

It is my sincere hope that we will be able to agree on a sensible interpretation of the regulations that permits other Kentucky lawyers to launch law-related web logs. Several Kentucky lawyers have told me that they are very attracted to the idea of creating web logs as on-line journals about the areas of law in which they practice. But each of them has expressed concern about the filing fee mentioned above. I am hopeful that the time and attention I have devoted to the issue will resolve the problem for everyone and pave the way for other web logs by Kentucky lawyers.

Thus, I will begin posting again this week. Look for my reports from the annual convention of the Kentucky Bar Association, where the featured speakers include Geoffrey Hazard and Jay Foonberg. It's good to be back!
Let me make two predictions: First, the Commission will, at the least, not impose a fee for every weblog posting by an attorney. Second, in due course, there will be no fee at all imposed on lawyer-authored blogs in that state.

Even the Commission knows that the general rule (a filing fee for engaging in free expression) is probably unconstitutional. Certainly, the Commission knows that an interpretation that would impose a filing fee on every blog posting is unconstitutional since it imposes a significant cost on the free speech rights of attorneys. Moreover, such a rule would put Kentucky attorneys at a competitive disadvantage against attorneys in other parts of the country.

3 comments:

Anonymous said...

"Even the Commission knows that the general rule (a filing fee for engaging in free expression) is probably unconstitutional."

Originalists do not believe the Constitution applies to blogs. Besides, regulation of attorneys, as opposed to dope (hey, what's the difference),is a state matter.

Carolyn Elefant said...

Hi Stuart,

I just linked to your post also in my commentary on Ben Cowgill's plight - even before reading yours!

Carolyn

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