If California’s New Blogging Rules Hurt Your Feelings, It’s Probably Because They Should
Mar. 17, 2015 (Mimesis Law) — I started making involuntary choking noises when I got to the letter he sent to the California State Bar Association.
I am a very well-known blogger and I find this proposed regulation extremely troubling for a great many reasons. My articles are considered very thoughtful, well-researched, and are generally well-received in California, throughout the country and abroad.
Who was this guy? The writer’s name was Mark Baer, and he described himself as “Family Law Attorney, Mediator, Collaborative Law Practitioner, Speaker, and Author.” Not that he’s trying way too hard, but if you have to tell someone you’re “a very well-known blogger,” you’re not. Worse still, I try to keep my finger on the pulse of blogging, and I’ve never heard of the guy. Ever.
His beef was with the new Cali attorney advertising rules for blogging. As rules go, they’re pretty straightforward.
1. Blogging by an attorney is subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising if the blog expresses the attorney’s availability for professional employment directly through words of invitation or offer to provide legal services, or implicitly through its description of the type and character of legal services offered by the attorney, detailed descriptions of case results, or both.
2. A blog that is a part of an attorney’s or law firm’s professional website will be subject to the rules regulating attorney advertising to the same extent as the website of which it is a part.
3. A stand-alone blog by an attorney that does not relate to the practice of law or otherwise express the attorney’s availability for professional employment will not become subject to the rules regulating attorney advertising simply because the blog contains a link to the attorney or law firm’s professional website.
The first part of the rules is basic commercial speech, the availability or quality of a service for sale. But that’s not blogging, that’s advertising. Baer thought it unbearable.
The State Bar of California recently issued Interim Formal Opinion 12-0006, which regulates “blogging” by attorneys and is so broadly worded that it essentially considers anything written by a member of the Bar about anything pertaining to the law to be lawyer advertising. Therefore, all such materials would require disclaimer language stating that they are lawyer advertising.
Baer then goes on to list his blogging accomplishments. They are, from a distance, not quite as overwhelming as he apparently thinks.
In fact, it is not uncommon for one of my blog articles to be picked up by Bar Associations in various parts of the world. Most recently, my Huffington Post Blog titled “The Power of Empathy” was republished in the Winter 2015 edition of “DR Currents – A publication of the dispute resolution section of the State Bar of Georgia.” This is my third time I’ve had my Huffington Post blog articles republished by DR Currents or vice versa.
Ouch. That whole “well-known blogger” thing is looking uglier and uglier. But if it makes Baer feel important, that’s nice. It’s unclear whether he writes (at far greater length than quoted here) about his importance in order to ascribe credibility to his pitch, or just to let the California bar folks know that he’s a really big deal. Finally, he catches up to his point:
In any event, the “Blog” versions of my article describe me as a “Family Law Attorney, Mediator, Collaborative Law Practitioner, Speaker, and Author.” My Bio on the Huffington Post states as follows:
“Attorney Mark Baer is recognized as a ‘thought leader’ in many areas of Family Law for his provocative and forward-thinking ideas on improving the way in which Family Law is handled. . . .
It goes on for several more paragraphs, all about Mark Baer.
I’m afraid that the proposed regulation will have a very chilling effect on blogging, much of which provides a means of conveying valuable information to a great many people. In addition, I don’t get compensated for the immense amount of time I spend on my blog articles and to state that because I allow people to know what I do for a living and that I am available to take on new clients, that I am advertising in the blog itself is outrageous.
Finally, only 37 (I’m guessing, I didn’t count) paragraphs in, and with more knowledge about what a groovy guy Mark Baer thinks he is than I ever wanted to know, his complaint becomes clear. The California Attorney Advertising Rules as blogging mean that guys like Mark Baer who want to pretend to be bloggers to mask naked self-promotion about the availability of their services and their self-attributed quality won’t be able to do so without a disclaimer that they’re doing exactly what they’re doing.
What attorney engaged in shameless self-promotion masquerading as blogging wouldn’t prefer that the bar allow him to keep his dirty little secret private? I completely understand why Baer doesn’t want to put a disclaimer on his blog that muddies his flagrant self-promotion with the dirty little characterization of advertising. I get it.
Except that it’s advertising. Dirty, shameless, ugly, nasty, self-promotion, under the guise of blogging. It doesn’t have to be. Nothing prevents Mark Baer from offering his brilliant posts illuminating whatever it is he wants to illuminate, sans the ten paragraphs of Mark Baer’s greatness. But you don’t get to do both.
Some may still yearn for the days when lawyer advertising had yet to be held a First Amendment right, dignity notwithstanding. But those days are gone, and lawyer advertising is a thing. So too are blogs. But when you combine the two, then the blog is every bit as much advertising as that big billboard on the interstate that shouts, “come to me and I’ll set you free.”
Contrary to Baer’s complaint, there is nothing in these rules that changes much of anything about lawyer advertising. It’s a pretty obvious requirement, that if you want to slime up a blog post with self-promotion, have the decency to come clean about it.
Heaven help the State Bar of California if I lose my position as a Huffington Post Blogger because of this asinine proposed regulation because I will without question take the Bar to court. How dare the State Bar of California trivialize my blog articles and the time and effort involved in creating them!
Ah ha! You almost had me there, Baer. Take the bar to court? So this was parody all along? Good one, bro.
Main image via Flickr/Christian Schnettelker.