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Bear with me a minute…I am thinking. Now I am writing about what I am thinking. You are overhearing what I am thinking. And, according to FindLaw columnist, Julie Hilden, we are both better off.

Are Lawyers’ Blogs Protected by the First Amendment? Why State Bar Regulation of Law Blogs As “Advertising” Would Be Elitist and Reductive

State bars from New York to California are now facing the question whether to expand their rules governing attorney advertising to encompass law firm blogs. (For most states, the State Bar is the regulatory agency for the state’s lawyers, responsible for admitting attorneys to practice, disciplining them, and regulating the profession as a whole.)

Such proposals raise serious First Amendment issues. Especially troubling is one procedure considered by New York. Under this procedure, as described last month in the New York Sun, New York lawyers would be required to submit ads (and if blog postings count as ads, blog postings) to a disciplinary committee shortly after publication, and to label their entire blog, in large letters, “Attorney Advertisement.”

It would be a grave mistake, however, for bars to begin equating blogs with advertisements, and treating them the same. Rules regulating attorney advertising are pernicious and elitist to begin with; they shouldn’t be expanded. And characterizing blogs as merely advertising for the attorney who writes them is so reductive as to be absurd.

Blogs allow a potential client to, in effect, listen to his potential lawyer think legal issues out. It’s hard to conceive of a more substantive, less elitist way to choose an attorney than this: Not on credentials or connections, but on sheer merit in one of the skills that matters most.

For clients to actually, in a sense, overhear lawyers think provides them with an invaluable opportunity. Indeed, for those who still cling to the idea that law is somehow “above trade,” it shows off the only aspect of the profession that really does, arguably, make it special: The law’s ideal is to let the best thinkers, and the best arguments, win.

If we want the best arguments to win in court, why shouldn’t we let the best bloggers win clients, too? State bars should affirmatively encourage legal blogs, rather than chilling them by regulating them as if they were no more significant than a banner on the back of a bus.

I wonder if I could put my blog on the back of a bus. Or, in a Sports Bar.

Is Florida ready for me on a big screen TV?

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