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Yet Another Reason Not to Use Canned Content

by Carolyn Elefant on August 25, 2010 · 4 comments

in Blogging, Ethics & Malpractice Issues, Marketing Ethics, Mistakes/What NOT To Do

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Courtesy of Professor Eric Goldman, here’s yet another reason to avoid canned content or ghostwritten materials in law firm newsletters, and by extension, blogs: it’s a sure-fire way to convert ordinary, First Amendment protected content into regulated advertising.

Holtzman v. Turza (N.D. Ill. August 3, 2010) serves as a cautionary tale of what happens to attorneys who don’t recognize the difference between content and copy.  In Holtzman, an Illinois attorney retained a marketing company to prepare and circulate a newsletter on his firm’s behalf. The newsletter contained articles prepared by the marketing firm without input from the attorney, but was prominently branded with the attorney’s name, contact information and head-shot. Every two weeks, the marketing company faxed the newsletter to a group of accountants whose contact information the attorney had purchased from the Illinois CPA Society.

The accountants brought a class action suit against the attorney, seeking $4,215,000 in statutory damages for violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227.  In a motion for summary judgment, the plaintiff-accountants argued that the faxes constituted prohibited advertising under the TCPA.

The court agreed. Among the factors militating in favor of its finding that the faxes constituted advertising, the court emphasized the prominence of the lawyer’s branding, which consumed a full 25 percent of each page of the publication as well as the fact that the publications were sent not by the attorney, but by his agent as “part of a paid marketing campaign.” Accordingly, the court concluded that the attorney:

has provided no facts to show that his genuine, primary motivation in paying Top of Mind [marketer] to distribute the Daily Plan-It was to educate CPAs and his business contacts on various industry-related topics rather than to build brand recognition and solicit business referrals for his law practice.

Goldman opines that this would have been a much more difficult case “if the editorial hadn’t been ghostwritten because the newsletter’s educative intent would have been clearer.” I agree. It’s hard for lawyers to argue that their communications are intended to educate or inform the public when they don’t prepare, or even oversee preparation of, those communications themselves.

Some lawyers may shrug aside this issue, assuming either cynically or ignorantly that the distinction between ghostwritten and lawyer-created content is a matter of semantics; that courts will deem either communication as “advertising” so long as a lawyer’s contact information is attached to it.  But that’s not so, at least if the New York Court of Appeals’ 2009 decision in Stern v. Bluestone carries any weight. There, in a landmark ruling secured by the blawgosphere’s own Scott Greenfield, the court held that the unsolicited, informational faxes prepared and distributed by solo Andrew Lavoot Bluestone on legal malpractice issues are not prohibited advertisements under the TCPA. The court was smart enough to recognize the difference between Bluestone’s newsletters — which contained substantive, lawyer-prepared content that varied with each issue and did not promote commercial products — are an entirely different animal from an outsourced piece of advertising fluff.

As I’ve written before, the rulings in these fax cases hold implications for blogs as well. Just as outsourced or ghostwritten faxes are considered advertising for purposes of the TCPA, so too ghostwritten, dreck blogs are more likely to be treated as advertising for the purposes of regulation. It’s just unfortunate that in an effort to save time, those lawyers who outsourcing blogging don’t realize the true cost: the potential loss of our First Amendment rights.

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