Archive for category LA Lawyer Ad Rules

Louisiana’s Regulation of Internet Speech By Attorneys Declared Unconstitutional

Posted by Scott Wolfe Jr in LA Lawyer Ad Rules, Press Release, Speech Restrictions by Bars, Wolfe v LADB on August 4th, 2009

New Orleans, Louisiana (PRWEB) August 4, 2009 – On Monday, federal Judge Martin Feldman declared unconstitutional Louisiana’s new regulations of attorney advertising on the Internet.

Scott Wolfe Jr. and Wolfe Law Group, who practice construction law in New Orleans, Louisiana, challenged the new lawyer advertising regulations as they applied to the Internet. Wolfe argued the regulations failed to consider the differences between television and Internet advertising, and regulated Internet ads without a need.

“Louisiana didn’t have a reason to regulate Internet ads, and they didn’t understand how attorneys actually use the Internet to advertise,” Wolfe said. “As a result, the rules were incompatible with the realities of Internet advertising.”

The United States Louisiana Eastern District Court agreed, stating in its 39-page opinion that “the Internet presents unique issues related to advertising, which the State simply failed to consider in formulating this Rule.”

“This is a very important ruling,” Wolfe adds. “The court not only noted that states must have a reason to regulate Internet speech, but it also recognized that the Internet media is different from broadcast media, and is entitled to unique protection.”

Certain other components of the new Louisiana lawyer advertising regulations were upheld, including restrictions on ads that promise results, portray a judge or jury or contain a celebrity endorsement.

While these regulations were upheld, the court noted that the “same Rules as those developed for television, radio and print ads” could not be simply applied to Internet advertising. Judge Feldman based this on a finding that “Internet advertising differs significantly from advertising in traditional media.”

Wolfe, who advertises exclusively online, argued that if the rules took effect an attorney’s participation in legal blogs and social networking sites would be unreasonably restricted. Further, Wolfe argued that Google ad campaigns could costs thousands in administrative evaluation fees.

Wolfe’s lawsuit was filed in the United States Eastern District Court of Louisiana, docket number 08-4994. Read a copy of Judge Feldman’s order at JDSupra.   The plaintiffs were represented by Ernest Svenson of the Svenson Law Firm, and pro-se by Wolfe Law Group.

For additional information on the news that is the subject of this release, contact Jessica Reiser or visit Wolfe Law Group’s online media center: http://media.wolfelaw.com.

About Wolfe Law Group
Wolfe Law Group is a construction law practice with offices in Seattle, Washington and New Orleans, Louisiana. The firm publishes a blog on Louisiana and Washington construction law titled the Construction Law Montior, and prides itself on thinking different in the legal profession.

Contact
Jessica Hunter, director of public relations
504-894-9653
http://www.wolfelaw.com

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Louisiana Legislators on Twitter Need Beware of New Attorney Regulations

Posted by Scott Wolfe Jr in LA Lawyer Ad Rules on July 13th, 2009

According to Louisiana’s WWL news, social networking sites like Twitter and Facebook are starting to take off in the Louisiana legislature.

While probably good for the politicians and their constituents, those legislatures who are licensed attorneys may need to be concerned about the impending advertising regulations in Louisiana.

Rule 7.6(d) will require that all communications by an attorney, concerning a lawyer’s or law firm’s services, be subject to the advertising rules.   After a constitutional challenge to the provision, the Louisiana legislature added language to 7.6(d) also requiring that the communication be made “when a significant motive” is the lawyer’s pecuniary gain.

When analyzing a similar rule in New York, the A.C.L.U. warned as follows:

Even such fundamental examples of political speech as, for example, a lawyer’s letter to the editor of the New York Times criticizing Attorney General Alberto Gonzalez (a lawyer), or a lawyer candidate’s statement in a televised debate of his qualifications for office would be covered by the plain language of the proposed rules.  These forms of communication are made “by…a laywer…about a lawyer” and thus fall within the rules’ explicit scope.

Granted, the June 4, 2009 amended to Rule 7.6(d) qualifies that only communications where the speaker has a “significant motive” of pecuniary gain apply…but, what does that actually mean?

In the seminal Central Hudson case, Justice Stevens warned about linking financial motivation with the constitutional protection of speech, stating that “even Shakespeare may have been motivated by the prospect of pecuniary gain.”

Some may argue that the application of Rule 7.6 to legislators using Twitter is far-fetched, but is it really?  Could there not be a bar complaint made against a state representative for violating this rule just to muddy the waters during a campaign?   The representative may, by the wording of the rule, been in violation.

Perhaps this is why the US Supreme Court has ruled that even the potential application of a rule in such wide-ranging contexts risks a chill on protected speech, and is unconstitutional.  NAACP v. Button, 371 US 415, 432-33 (1963).

From the WWL TV article, it appears that Representative Walter Leger (D-New Orleans) started the Twitter movement at the state capital.    Mr. Leger is an attorney.   Let’s hope he either doesn’t talk about other attorneys on Twitter, or he has taken a vow of poverty.  Otherwise, Rule 7.6(d) may technically be problematic.

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Louisiana Ad Rules Pushed Back 6 Months, WLG Files Motion for Summary Judgment

Posted by Scott Wolfe Jr in LA Lawyer Ad Rules, Press Release, Wolfe v LADB on February 22nd, 2009

Wolfe Law Group announces the filing of a Motion for Summary Judgment in its challenge of the Louisiana lawyer advertising rules, and the Louisiana Supreme Court announces that the effective date of the rules are postponed until October 1, 2009.

NEW ORLEANS, LA (WolfeLaw) February 19, 2009 — Yesterday, the Louisiana Supreme Court announced that the new lawyer advertising regulations would take effect on October 1, 2009, rather than the previously announced effective date of April 1, 2009.

According to the press release, “the Court has decided to defer implementation of the new rules until October 1, 2009, in order to allow the LSBA and the Court to further study certain rules in light of the constitutional challenges that have been raised.”

As many of our clients and friends know, Scott Wolfe Jr. and Wolfe Law Group filed a federal lawsuit against the Louisiana Attorney Disciplinary Board in November 2008 to challenge the new lawyer advertising regulations as unconstitutionally restricting a lawyer’s right to free speech.

On the evening before the Louisiana Supreme Court press release, Wolfe Law Group, along with consolidated Plaintiffs Public Citizen, Inc., William Gee, and Morris Bart, had filed Motions seeking Summary Judgment.   The Motion of Scott Wolfe Jr. and Wolfe Law Group is available for viewing on our JDSupra page, here.

Notwithstanding the Louisiana Supreme Court’s postponement of the advertising regulations, the Summary Judgment motions are currently set for hearing on March 4, 2009 at 10:00 A.M.

To continue commenting upon the progress of the action, the firm launched a blog titled “Blogging is Speaking,” at the web address http://www.protectspeech.com.  The blog was updated this morning with a new look, and more user-friendly layout.

For a copy of the lawsuit, click here.

Find the cause on Facebook here.

The lawsuit was filed in the United States District Court of the Eastern District of Louisiana, Case No. 08-4994, Section F, Magistrate 2.

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Do Louisiana Ad Rules “Ban Blogs?”

Posted by Scott Wolfe Jr in LA Lawyer Ad Rules, Wolfe v LADB on November 28th, 2008

In response to our federal complaint, the lawyer blogging nation sent both their well-wishes and skepticism. We’ve also seen some welcomed press about our fight against the Louisiana State Bar Association’s new advertising rules, including an article from the ABA Journal (here) and the National Law Journal (here).

Unfortunately, however, there has been a bit of confusion about our complaint with the new advertising rules, and this brings me to the question of this post:

Do the Louisiana Advertising Rules “Ban Blogs?”

The short answer: No. The long answer: Well, blogs are implicated.

Rule 7.6(b) exempts a lawyer’s or law firm’s website from the costly evaluation process. A lawyer’s blog would therefore presumably be considered under the purview of 7.6(b), and not required to go through the evaluation process.

Websites and blogs (even if exempt from evaluation) will still be implicated by the new rules, as they are subject to the restrictive (and possibly unconstitutional in itself) Rule 7.2.

By exempting the law firm’s website, Louisiana skirted the issue of whether to specifically regulate lawyer blogs. But since 7.2 applies to blogs, it begs the question: Can the government regulate our blogs just as they regulate our “advertisements?”

A component of this blog’s purpose is to promote the idea that “blogging” and “advertising” do not go hand-in-hand, and that if the government is going to regulate both, it must at least distinguish between the two.

This important issue, however, will be addressed further on this blog, and through the proceeding itself.

Suffice to say for now, however, that the new advertising rules do not outright restrict an attorney’s ability to blog. Thus, the above-stated “short answer.”

So What’s The Real Problem?

Wolfe Law Group’s real complaint with the Louisiana lawyer advertising rules are two-fold:

1) The rules restrict attorneys from advertising through certain mediums, and specifically, through online media that limits character counts.

This argument concerns real red-blooded traditional advertisements. Since the new rules require certain information to be contained within every ad, they restrict or eliminate an attorney’s ability to communicate a message through Google Ads, Google Mobile Ads, and similar online advertisements, because the required information simply won’t fit.

2) Rule 7.6 (d) subjects all “computer-accessed communications concerning a lawyer’s or law firm’s services” to the evaluation process, and all advertising regulations.

In the Louisiana State Bar Association’s Handbook on Advertising, this is explained to include “all computer-accessed communications concerning a lawyer’s or law firm’s services, other than the Web site or home page of the lawyer or law firm.”

The implications of this rule is at the heart of the federal suit.

First, the definition of “advertisements” as all “computer-accessed communications concerning a lawyer’s or law firm’s services” is simply too broad, and it includes things that are not advertisements and – possibly – not commercial speech.

Second, 7.6(d) would seemingly apply to:

  • Comments by an attorney on the blog posts of others, on sites that are not owned by them;
  • “Answers” or legal information given to the public on sites such as Avvo or LawGuru;
  • Posts on micro-blogging platforms like Twitter, which includes information posted by an attorney on his or her own profile page, or possibly on the face of other users’ pages;
  • Participation by an attorney in podcasts, or online videos, wherein the discussion “concerns the lawyer’s services,” if that podcast or online video appears off the lawyer’s website;
  • “Guest Blogging;”
  • Posting of documents on services like JD Supra (incidentally, this could possibly be considered forbidding since it is an “advertisement” that “resembles a legal pleading” in violation of Rule 7.2(c)(K));
  • Facebook pages (and changes thereto), LinkedIn profiles (and changes thereto);
  • The appearance of your blog posts across the web on other websites via RSS feeds; etc.

Conclusion

The new Louisiana advertising rules do not “ban blogging.” However, the rules are so broad that they implicate an attorney’s right to freely speak about his or her trade, to participate in online social communities, and to communicate about his or her services though online media not “on the lawyer’s website.”

The attempt by Louisiana to equate “advertising” with “communicating about the lawyer’s or law firm’s services,” is stretching the U.S. Supreme Court’s commercial speech doctrines to include non-commercial speech by attorneys. And while the rules do not bar blogging per se, the rules do interfere with the blogger, and the blogger’s ability to harness the power of the Internet to communicate with clients, colleagues and the public.

Learn More
Learn more about the fight against the Louisiana State Bar Association by subscribing to this blog’s RSS Feed.

You can also read the Louisiana lawyer advertising rules at lsba.org here.

Download and read the filed complaint through the JD Supra service by clicking here.

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