Should State Bars Back Off Attorney Advertising?

When I talk to conscientious attorneys about my work as a ghost blogger, one question always comes up – does their State Bar allow them to blog? Now some big name attorney bloggers are asking whether state bars should just butt out when it comes to attorney advertising.

Does the State Bar of Michigan Prohibit Blogging?

Michigan’s rules regarding advertising are actually less restrictive than some other states. According to the Michigan Rules of Professional Conduct:

(a) Subject to the provisions of these rules, a lawyer may advertise.
(b) A copy or recording of an advertisement or communication shall be kept for two years after its last dissemination along with a record of when and where it was used.
(c) A lawyer shall not give anything of value to a person for recommending the lawyer’s services, except that a lawyer may:
(i) pay the reasonable cost of advertising or communication permitted by this rule;
(ii) participate in, and pay the usual charges of, a not-for-profit lawyer referral service or other legal service organization that satisfies the requirements of Rule 6.3(b); and
(iii) pay for a law practice in accordance with Rule 1.17.

There is nothing in this rule that excludes blogging. Nor can it be considered direct potential client solicitation. According to Rule 7.3, solicitation does not include:

[L]etters addressed or advertising circulars distributed generally to persons not known to need legal services of the kind provided by the lawyer in a particular matter, but who are so situated that they might in general find such services useful. . .

So there is little question: attorney blogging is a legal form of advertising in Michigan. Even so, many lawyers aren’t sure. They have been warned against “soliciting” clients, and don’t want to take the risk of being wrong about what that means.

Should State Bars Butt Out?

That confusion and the “chilling effect” of complex prohibitions have prompted several prominent attorney bloggers to speak out in favor of much more permissive regulation.  According to Sam Glover from Lawyerist:

While most lawyer marketing is pretty awful, consumers are better off if they can find a lawyer when they need one. Marketing facilitates that, even if it isn’t always pretty. Our only concern ought to be whether legal marketing is misleading…

I’d rather see ethics boards aggressively police false and misleading marketing than waste time cracking down on lawyers who forget to include ATTORNEY ADVERTISING disclaimers on their Twitter profiles.

Josh King from Socially Awkward, goes further, claiming that attorneys and the public have a constitutional right to commercial speech:

The Supreme Court has repeatedly noted in some two dozen adverting cases over the last 40 years that consumers have a very strong interest in minimally restrained commercial speech…

And yet, the Bar restrictions, with their often-byzantine level of detail and apparent reach into all manner of attorney speech, are preventing attorneys from providing consumers with the robustness of information necessary to make good purchasing decisions – or to get legal help at all.

Whether or not I agree with the specific language these bloggers recommend, one thing is clear: lawyers and the public would be much better off if state bars across the country would pare down their attorney advertising restrictions and let lawyers present their best selves to potential clients through advertising, blogging, and content marketing.

Lisa Schmidt is a writer for Legal Linguist. She helps attorneys create a robust online presence by writing their blogs and web content for them. If you have been looking for a new way to attract clients and improve your referrals, contact Legal Linguist for a meeting today.

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