The first shot has been fired in what will certainly become the messiest situation to hit attorney ethics
in decades. Kentucky wants to monitor attorney’s Facebook pages. As my daughter would say,
O…M…G…
The ABA Journal recently reported that, “the [Kentucky] bar has proposed a regulation that would bar
solicitations through social media unless lawyers pay a $75 filing fee and permit regulation by the bar’s
Advertising Commission.” For those who want to see the proposed amendment directly, you can
check out a posting on the website that calls itself the “Kentucky Law Review.”
I understand where they’re coming from. Most of what lawyers do on Facebook and other social
networks are not-so-veiled attempts at promoting themselves and self promoting speech is basically a
subtle form of advertisement. I’ve been telling people in my seminars for a while now that the ethics
rules have always regulated advertising, so it was just a matter of time until some bar extended that
regulation to self promoting speech on social media.
Here’s how the ethics rules regulate attorney speech in this regard: The most current ABA Model Rule
7.2 tells us that lawyers can “advertise services through written, recorded or electronic communication,
including public media.” The actual language that we use in those advertisements is regulated by
Rule 7.1, which states that any communication you make about yourself or your services can not be
false or misleading. Here’s the kicker: The restriction on your speech set forth in Rule 7.1 isn’t limited
to that which is contained in your advertisements. 7.1 covers all communications that you make about
yourself or your services.
There are, therefore, two critical questions: When are your statements on Facebook considered plain
old speech, as opposed to a “communication about a lawyer or the lawyer’s services” that falls under
the purview of rule 7.1? Or seen from another perspective, when do your self promoting statements
cross the line and become an “advertisement” that’s regulated by Rule 7.2?
Kentucky redefined the term advertisement to make it much more broad. What’s scary is that
according to the definition in Kentucky’s proposed regulation, you could be “advertising” by simply
communicating your NAME to another person! Granted, they try to carve out an exception by stating
that “communications of a non-legal nature are not advertisements” but the obvious question is, “Who
determines if your statements are of a non-legal nature?” In Kentucky, the answer is, the Advertising
Commission. Now you’re probably wondering, “What’s the criteria they will use?” Well, your guess is
as good as mine.
Oh yeah…this is gonna be a mess. Not only will we have fun trying to figure out what standards
Kentucky will employ, but each state is likely to address this differently. As my grandmother would say,
“Oy vey….”
[Comments are apparently being accepted in Kentucky until December 15th. I’ll keep you posted on
the developments]

The first shot has been fired in what will certainly become the messiest situation to hit attorney ethics in decades. Kentucky wants to monitor attorneys’ Facebook pages. As my daughter would say, O…M…G…
The ABA Journal recently reported that, “the [Kentucky] bar has proposed a regulation that would bar solicitations through social media unless lawyers pay a $75 filing fee and permit regulation by the bar’s Advertising Commission.” For those who want to see the proposed amendment directly, you can check out a posting on the website that calls itself the “Kentucky Law Review.”
I understand where they’re coming from. Most of what lawyers do on Facebook and other social networks are not-so-veiled attempts at promoting themselves and self promoting speech is basically a subtle form of advertisement. I’ve been telling people in my seminars for a while now that the ethics rules have always regulated advertising, so it was just a matter of time until some bar extended that regulation to self promoting speech on social media.
Here’s how the ethics rules regulate attorney speech in this regard: The most current ABA Model Rule 7.2 tells us that lawyers can “advertise services through written, recorded or electronic communication, including public media.” The actual language that we use in those advertisements is regulated by Rule 7.1, which states that any communication you make about yourself or your services can not be false or misleading. Here’s the kicker: The restriction on your speech set forth in Rule 7.1 isn’t limited to that which is contained in your advertisements. 7.1 covers all communications that you
make about yourself or your services.
There are, therefore, two critical questions: When are your statements on Facebook considered plain old speech, as opposed to a “communication about a lawyer or the lawyer’s services” that falls under the purview of rule 7.1? Or seen from another perspective, when do your self promoting
statements cross the line and become an “advertisement” that’s regulated by Rule 7.2? Kentucky redefined the term advertisement to make it much more broad. What’s scary is that according to the definition in Kentucky’s proposed regulation, you could be “advertising” by simply communicating your NAME to another person! Granted, they try to carve out an exception by stating that “communications of a non-legal nature are not advertisements” but the obvious question is, “Who determines if your statements are of a non-legal nature?” In Kentucky, the answer is, the Advertising Commission. Now you’re probably wondering, “What’s the criteria they will use?” Well, your guess is as good as mine.
Oh yeah…this is gonna be a mess. Not only will we have fun trying to figure out what standards Kentucky will employ, but each state is likely to address this differently. As my grandmother would say, “Oy vey….”
[Comments are apparently being accepted in Kentucky until December 15th. I’ll keep you posted on the developments]