Attorney advertising, ethical rules and the 1st amendment

Last week I moderated a panel at the Bar Association of San Francisco about the proposed California Rules of Professional Conduct 7.1-7.5 (governing attorney advertising & solicitation), the First Amendment, and use of blogs, wikis and podcasts by attorneys. Panelists Denise Howell, Ann Brick of the ACLU and Paul Vapnek were fantastic in explaining this conundrum and, in some cases, left me (and I expect others) with a feeling of cold comfort that the blogging and podcasting activities of many of us in the legal profession technically fall within our ethical obligations under the existing current California Rule 4-100.

Below is a list of links that were contained in the written materials for the program. In addition, has an article about one malpractice insurer's guidelines in response to blogging (bottom line: no "Dear Abby blogs") and and another article about the case challenging NY's new advertising rules which will be going to trial soon. Here are the links:

Recent news articles discussing attorney advertising issues, blogging issues:
Law blogs raising prickly ethical issues: States debate if it's free speech or ad (10/06/06)
“N.Y. Firm Challenges New Attorney Ad Rules: Plaintiffs claim restrictions limit free speech and client access (02/05/07)
Will Law Firm Blogs Be Regulated as Advertising? (10/11/06)
Are Lawyers' Blogs Protected by the First Amendment? Why State Bar Regulation of Law Blogs As "Advertising" Would Be Elitist and Reductive” (10/16/06)
Blogging prosecutors raise some eyebrows (2/25/07) (SF

Legal ethics blogs and related sources:
Legal Profession Blog:
Ben Cowgill’s Kentucky Legal Ethics:
Legal Ethics Forum:
New York Attorney Malpractice Blog:
The Boundaries for Legal Marketing: (not updated since '06)
Corante Between Lawyers:
Lex Blog:

About Blogging Policies:

Links to discussion and examples of creative uses of “Live Web” technology in legal practice:
Wikis for the Legal Profession (2/2007)

Legal Ethics Websites from the Bar:
Current Rule of Professional Conduct 1-400
Proposed new rules regarding solicitation and advertising 7.1-7.5
State Bar Ethics website
Ethic’s Hotline information
ABA Center for Professional Responsiblity
ABA Law Practice Management eLawyering Task Force | Best Practices

Links to Nike v. Kasky case information (re: commercial speech doctrine):
Supreme Court Opinion (pdf)
NYT Article

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