SillyChild-like. These are just a couple of ways The Florida Bar Guidelines for Networking Sites Approved by The Standing Committee on Advertising have recently been described.

And as I wrote in Solely Social or Used to Promote?, they demonstrate a fundamental lack of understanding about how we communicate.

You see, the Florida Bar would prefer to look at communications by lawyers on social networking sites as fitting into neat little boxes.

In one box, they would put communications by lawyer “solely for social purposes, to maintain social contact with family and close friends.” These they suggest are not subject to the lawyer advertising rules.

In a second box, they would put “pages appearing on networking sites that are used to promote the lawyer or law firm’s practice.” These they suggest are subject to the lawyer advertising rules.

And while some communications by lawyers may fit neatly into one of the two boxes, of course we know that the overwhelming majority of communications will include social purposes, as well as, promotional purposes.

But even if we recognize that communications are intended to convey a variety of meanings, there’s really another question here. Should the intent of the communication be the distinguishing factor?

In Legal Blogging vs Advertising & Marketing we examined the Horace Hunter blog debacle. In that example the Virgninia Bar took issue with Mr. Hunter’s omission of disclaimer on his “blog”. They claimed that at least one purpose of his website to market the firm and attract business.

Which raised the question of whether there true distinctions between blogs, other forms of electronic communications, marketing materials, and advertisements.

As I’ve written before, at least with regard to lawyer ethics rules, the issue shouldn’t be whether the intent of the communication was editorial, solely social, or used to promote.

As Professor Goldman puts it:

“The law doesn’t handle editorial-content-as-marketing overlaps very well, unfortunately.”

In my humble opinion, even The U.S. Supreme Court has trouble making the distinction between “pure speech” and “commercial speech” (much this trouble created by the Court).

And so, in the end, lawyers, at least those in Florida, in order to comply with the silly and child-like rules of their State Bar, must regulate their communications to fit neatly into one of two boxes. Those that are solely for social purposes and those that are used to promote.

I challenge you to answer the hypothetical examples listed here.