UPDATED: corrected typo of "infoonation" to "information". Thanks to avid and persistent reader. The explanation for those who are interested is that i converted the rules sent to me in PDF image to PDF OCR and had a few corrections to make. I proofed poorly. 11/21/2010.
Here are the proposed changes to the advertising rules and social media. I have "marked through" the deletions and “underlined” the additions. Note there is a Dec. 15, 2010 deadline for written comments to the KBA Executive Director. Feel free to post comments to this blog, and I will see that they reach the director.
The Supreme Court Rules can be found by clicking here.
KENTUCKY BAR NEWS
PROPOSED AMENDMENT, DELETION AND ADDITION TO THE REGULATIONS OF THE ATTORNEYS' ADVERTISING COMMISSION, PURSUANT TO SCR 3.130(7.03)(5)(A)
As approved by the KBA Board of
Governors July 30, 2010
Supreme Court Rule 3.130 contains the Kentucky Rules of Professional Conduct which include rules on lawyer advertising. SCR 3.130(7.03) establishes an Attorneys' Advertising Commission (the "Commission") which has general responsibilities for implementing the lawyer advertising rules. In discharging its responsibilities, the Commission is given authority to issue and promulgate regulations subject to prior approval by the Board of Governors. When proposed regulations are issued, members of the Kentucky Bar Association are entitled to at least sixty (60) days advance notice and an opportunity to comment. The Commission has promulgated an amendment to Regulation 2, proposes to delete Regulation 3 as it has been superseded by the requirements of SCR 3.103(7.25), and proposes a new Regulation enumerated number 17. The Board of Governors approved these changes on July 30,2010, subject to review and consideration of comments from the membership. Members wishing to comment on these proposed regulations must do so in writing. Written comments must be sent no later than December 15,2010 to the Attorneys' Advertising Commission, c/o KBA Executive Director, 514 West Main Street, Frankfort, KY 40601-1812.
AAC Regulation No.2: (to be amended) PERMISSIBLE CONTENT OF ADVERTISEMENTS SUBMITTED WITHOUT A FEE Pursuant to SCR 3.130-7.05(l)(a)(26) the Commission may specify additional information that may be contained in advertisements that are permitted to be submitted without a fee. The following additional information may be included in any of these advertisements: ...
11. The website address of a lawyer or law firm's website advertisement, if the website has been submitted [and approved] as required by SCR 3.130(7.05); ...
Note: The remaining portions of this Regulation are not sought to be amended. They may be viewed at www.kybar.org.
AAC Regulation No.3: (to be deleted) COMMUNICATIONS THAT REQUIRE THE DISCLAIMER "THIS IS AN ADVERTISEMENT" [SCR 3.130-7.09(3) requires that certain types of advertisements contain the disclaimer "THIS IS AN ADVERTISEMENT." In addition, SCR 3.130-7.25 authorizes the Commission to require the disclaimer "THIS IS AN ADVERTISEMENT." This Regulation No.3 clarifIes the relationship between SCR 3.130-7.09(3) and SCR 3.130-7.25.
1. SCR 3.130-7.09(3) does not apply to every written, recorded or electronic communication from a lawyer, including emails. Rather, it applies only to any such communication that solicits "professional employment from a prospective client known or reasonably believed to be in need of legal services in a particular matter, and with whom the lawyer has no family or prior professional relationship." The term "particular matter" includes any identifIable type or category of legal matters as well as any specific case of that consumer. An advertisement that is within the scope of SCR 3.130-7.09(3) must include the disclaimer "THIS IS AN ADVERTISEMENT."
2. Even if an advertisement does not constitute a solicitation of professional employment within the scope of SCR 3.130-7.09, the Commission may require the disclaimer "THIS IS AN ADVERTISEMENT." Pursuant to SCR 3.130-7.25, if the Commission concludes that the advertisement may not be perceived by the consumer as a quest for clients because of its format, manner of presentation or medium.]
AAC Regulation No. 17: (proposed new regulation) SOCIAL MEDIA SCR 3.130-7.020(1)(j) states'
" 'Advertise' means to furnish any information or communication containing a lawyer's name or other identifying information. and an 'advertisement' is any information containing a lawyer's name or other identifying information. except the following ... Information and communication by a lawyer to members of the public in the format of web log journals on the internet that permit real time communication and exchanges on topics of general interest in legal issues provided there is no reference to an offer by the lawyer to render legal services"
Communications made by a lawyer using a social media website such as MySpace and Facebook that are of a non-legal nature are not considered advertisements: however. those that are of a legal nature are governed by SCR 3.130-7.02(1(j).
*All language in brackets [we did a strikethrough to make it clearer] is to be deleted. All language underlined is to be added.
September 2010 Bench & Bar 45