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When Jose Baez adds videos of news clips and interviews to his website, is it marketing?
Why do you think he posts them? Does the reason that he posts them matter in determining whether they are marketing or not?
Do you think these videos might persuade some people to believe that Mr. Baez is a competent attorney?
Is focusing on drawing a distinction between marketing and non-marketing communications really the best approach to regulating lawyer speech for the protection of the public?
When Horace Hunter refused to add a disclaimer to his website claiming that “This Week in Richmond Criminal Defense” was not an advertisement, but a blog, he brought attention to a variety of issues relating to blogging, advertising, client confidences and the 1st Amendment. If you’re interested in reading more on some of these issues, I encourage you to check out the following:
- The Charge of Misconduct
- Case discussion OK on lawyer blog (VA Lawyer’s Weekly)
- Blogs and Client Confidentiality – a tale of two rules (Will Hornsby)
- First Amendment Challenge to Restriction on Lawyer’s Blog Likely to Flounder – And Bring Other Blogs Down With It (Carolyn Elefant)
- Attorney Horace Hunter’s Blog Controversy & First Amendment Rights (Legal Talk Network Podcast)
- Horace Hunter And The Sham Lawyer Advertising Disclaimer (Max Kennerly)
It was Max’s post, and in particular the comments on his post, that motivated me to write on this subject again. For the purposes of this post, I’d like to put aside for the moment, the specifics of Mr. Hunter’s situation. Instead, I’d like to explore this idea of the distinction between pure commentary, pure marketing and overlapping commentary and marketing.
As I have conceded in the past, and of which I will no doubt be reminded again, I do not purport to be an expert on the First Amendment or the Commercial Speech Doctrine. In other words, I’m no Josh King (who has been very generous with his time in clarifying these matters for many attorneys, including yours truly).
So since I’m too stupid to tell the difference between marketing and blogging, I’m hoping some of you might be able to help.
What is Marketing?
According to the American Marketing Association Board of Directors:
Marketing is the activity, set of institutions, and processes for creating, communicating, delivering, and exchanging offerings that have value for customers, clients, partners, and society at large.
Now, I think I have a handle on things when it comes to intentional, pure and unadulterated marketing:
X is a well-known criminal defense specialist who represents clients in court and in investigations throughout the United States. She is highly regarded for her courtroom skills and her successes. Over many years of practicing, X has focused on the defense of individuals and corporations accused of financial offenses and crimes.
X is one of a handful of top criminal defense lawyers who excels in both trial work and appeals. Her written work on legal issues –in trial and appellate courts– is considered to be some of the best in the nation.
But where I struggle, and am hoping you can help, is where, borrowing and paraphrasing from Professor Goldman:
the content’s marketing intent is clear and unmistakable, the substance is also unambiguously editorial content however broadly or narrowly we conceive of it. The law doesn’t handle editorial-content-as-marketing overlaps very well, unfortunately.
I also have a relatively decent grasp on, at least some, pure editorial speech:
Down with the King!
But don’t most communications fall somewhere in-between?
Editorial Content As Marketing
Is it a matter of intent? Should intent come into our analysis at all? If I, as a lawyer, write something purely editorial with the intent of persuading someone to hire me, is it commercial or non-commercial?
If I, as a lawyer, write something that is overlapping editorial-marketing-content like, “Through my 30 years of working on cases of such and such and having had many successes in litigating these matters, I have never seen such a miscarriage of justice…”
And what about purely editorial speech that is completely false? Yeah, I have seen plenty of that online too. Seems like the public is much more vulnerable to incorrect editorial or informational statements by a lawyer than a lawyer who factually and honestly talks about how many cases she has won.
Looking around the web, it is evident that I am in the overwhelming minority in grappling with this distinction. For most, it would seem, that it’s very easy to distinguish between marketing and non-marketing content, both on the web and elsewhere.
But for me, I’m with Alison Monahan:
This distinction really blurs when you consider “content marketing.” Is it a blog? Is it marketing? Frankly, it’s all “marketing,” in theory, even the parts that are more objective. If the point of content marketing is to consistently provide useful content to people so they come to like and trust you (and eventually give you money), I think this “blog” vs. “marketing copy” distinction is a distinction without a difference.
Maybe it makes lawyers feel better to say “Oh, that’s ‘marketing copy'” while sniffing into their scotch, but the reality is that anyone who’s blogging to build a reputation is marketing themselves. And there’s nothing wrong with that.
I know, many of you noble legal bloggers only write to educate others and any incidental professional benefit that you might realize from publishing online is completely unintended.
Again, I wouldn’t want a rule that twists and turns solely upon the alleged intent of the writer.
I know some will accuse me of falling into the everything is marketing trap. But that’s really not my point. To me, it doesn’t really matter whether you intend to be marketing or merely educating.
Trying to codify the subtle distinctions between marketing and non-marketing is a losing battle that results in vague rules that fail to adequately put members of the Bar on notice of what types of communications are prohibited.
In fact, with much respect to SCOTUS, I’m not so sure that they have a very clear picture of how the Commercial Speech Doctrine ought to be applied.
For now, I am resigned to believe that the best we can do is to protect the public from false and misleading communications, marketing or not. Furthermore, shouldn’t we spend more resources enforcing those rules and disciplining those that are making clearly false communications? It seems that there’s enough of that going around to keep state bar regulators busy as it is.