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.
Scott Wolfe Jr. (092642)
We’ll see what happens…