Tag Archives: Attorney Internet Advertising

First Louisiana, Now Oregon?

In 2008, I filed a lawsuit against the Louisiana State Bar Association, which resulted in this post in August 2009:  I beat the Louisiana Bar…and it was cool.  In addition to being a licensed Louisiana attorney, I’m also a licensed attorney in Oregon, and therefore received the July 2013 Issue of the Oregon State Bar Bulletin publication which contained a section pleading for c”comments” on the “Proposed Advertising Rule Amendments.”

Uh-oh, I thought. My thoughts about bar associations and the needs they do or do not serve is at least a two drink story. I’m keeping this post pithy. The proposed Oregon rules are exactly as unconstitutional as the Louisiana rules struck down pursuant to my lawsuit.

Proposed Rule 7.2(c), for example, requires all “electronic communications” to “include the name and office address of at least one lawyer or law firm responsible for its content.”  Similarly, Rule 7.3(c) requires “every…electronic communication” to include “at the beginning and ending” of the communication to include the words “Advertising Materials.”

Just like the case in Louisiana, these two proposed provision in Oregon fail to access the risk of their non-existence, but more problematically fail to consider the nature and realities of the communications they seek to regulate.

Accordingly, in response to the request for comment, I sent the following to Helen Hierschbiel, Oregon State Bar’s General Counsel:

Dear Ms. Hierschbiel:

This email is sent in response to your office’s request for comments within the Oregon State Bar Bulletin (July 2013). I am a licensed attorney in Oregon, as well as a few other states, including Louisiana.

In 2008 / 2009, Louisiana amended their RPCs to more strictly regulate advertisements. I particular took issue with the requirements as they restricted freedom of speech through electronic communications (websites, blogs, twitter feeds, etc.). Therefore, I filed a federal lawsuit against the bar association: Scott G Wolfe Jr, et al v. Louisiana Attorney Disciplinary Board, et al, United States Eastern District Court, No. 08-4994.

After a Motion for Summary Judgment, the court ruled in our favor and declared the Louisiana rules unconstitutional as they related to electronic communications. See: Order and Reasons.

Today, in response to the Oregon Request for Comments, I write with most concern for Rule 7.2(c), which provides that “Any communication made pursuant to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content.”

Since “communication” is previously defined as “written, recorded or electronic,” this provision is eerily similar to the provision that caused concern in Louisiana and ultimately led to its unconstitutionality.

In promulgating these rules, the Oregon Board of Governors must consider the character and nature of the communications it seeks to regulate. With specific regard to electronic communications, it appears that Oregon would be making the same mistake as Louisiana, for at least the following two reasons:

(1) I suspect that Oregon, like Louisiana, will not be able to show any harm caused to any consumers as a result of any electronic communications by attorneys; and

(2) Oregon will not be able to justify the requirements of Rule 7.2(c) in electronic communications, which, unlike print and traditional advertisements, oftentimes have character limitations.

The same problems arise with respect to proposed RPC 7.3(c).

I’m happy to discuss these issues with any contacts at Oregon further.

Best,

Scott Wolfe Jr. (092642)

We’ll see what happens…

I beat the Louisiana Bar…and it was cool

On a chilly evening in November of last year, I was sitting aside a fireplace in Seattle, Washington, and reading literature from the Louisiana State Bar Association explaining its new lawyer advertising regulations. It got me riled.

It was clear that the Louisiana bar wanted to regulate personal injury advertising, but the animosity it harbored for this style of advertising had blinded its duty to its membership…and to me. Particularly, my complaint was with it’s regulation of speech by attorneys on the Internet.

Hoping to prevent personal injury attorneys from posting “disgraceful” ads online, the bar passed a far-reaching rule that restricted all attorney communication on the net. The regs were a bit complex, but here is a summary: If you’re an attorney, and you say something online, it’s regulated.

The rule was so out-of-this-world unconstitutional, I can hardly believe the bar spent its entrusted funds to fight it.

I suppose there are two reasons it did so: (1) It was blinded by its disdain of personal injury ads; and (2) It was clueless about how the Internet actually worked.

After a nine-month constitutional battle, the Louisiana Eastern District Court agreed with our position, and the state was enjoined from enforcing the component of its rules regulating attorney speech online.

In retrospect, the entire experience was fun. There I was, less than 4 years out of law school, as a lone plaintiff against the Louisiana State Bar Association. Standing before the district court judge, I could barely remember how I stumbled into the situation.

The experience was eye-opening, too. A small faction within the powers-that-be in the Louisiana bar single-handily decided to over-regulate attorneys, and it took a lot of work (and unfortunately, thousands of dollars) to stop it. Shouldn’t the bar association be more responsible to its membership? I found the bar surprisingly stubborn about its position, even though it had no support.

Word is that the bar will go back to the drawing board on Internet regulations. Someone asked me a few months back what would be a fair regulation of attorney communications online. My answer was that bar associations should regulate in response to an actual problem, and not because because they’re interested in having a regulation. If they can’t identify a problem…how are they going to successfully regulate the non-existent problem?

As the bar prepares to take a second shot at Internet regulation, I hope they do their homework. They owe it to their membership, and to me.

**

I kept a blog about the progress of this suit, which you can read at http://www.protectspeech.com. You can also check our some of the press we got here:

Forbes Magazine: Lawyers Say Limits on their ads unconstitutional

Lawyers USA: Judge Rules on Louisiana Advertising Rules

ABA Journal: Judge Strikes Down Louisiana Ad Restrictions on Lawyer Internet Ads

JDScoop: Explaining the Court Decision and Order