Law School Debt & Living on the Government's Dime

This article presents a very real look at the state of the legal market as it relates to debt.

With regard to the discussion of income-based repayment,[1] as a May 2011 law school graduate, I can vouch for the fact that this is one of the only options for new law school graduates who do not go directly into Biglaw.

I had the special circumstance of graduating in May, right before a new Direct Loan website was rolled out. In November, after calling on a daily basis in an attempt to get through to a live person, I was told by a Direct Loan representative that I was going to have to make payments on my loans, in full, until my IBR application was processed (you know, the one that wasn't available until well into October, due to aforementioned new site roll out). When I point blank told the representative that there was no possible way I could make my monthly payments in full, I was graced with the following question, "What would you have done if IBR was not an option?" [2]

I absolutely LOVE my job, but it honestly does not pay me enough to make the full monthly payments. It is my first paying job out of law school, and I am certain that one day, this will not be the case. However, I am a rare breed of person that went to law school because I passionately wanted to be an attorney. I wanted it so badly that I left my well-paying marketing job to attend law school full time. My point is that I did not attend law school to make piles of money. Thus, (maybe naively) cost was not a major factor for me when attending school. I could care less how much debt I was going to end up in, because I could not spend one more day in marketing. Granted, the economic crisis was just coming to a head when I left my job in 2008.

So here is the question: After knowing what I know now about the state of the economy and the state of the profession would I still attend? Absolutely. I realize it makes me sound like a millennial brat that I am more than willing to borrow the government's money so that I can (gasp) live a happy life. Given that I was born in the 80s, and have, my entire adult life, understood debt to be a way of life, I'll take debt over misery every day of the week.

However, I appreciate what this article is attempting to accomplish. Being someone who really wants to practice law, I can recognize that a warning needs to be sent out to those that attend law school for another purpose. I look forward to seeing the changes in the legal market. [3]

I would welcome thoughts and opinions on this topic. I know it's a familiar topic for my generation of new attorneys, and there are some very polarized views.

[1] Hereinafter referred to as IBR
[2] In my most serious lawyer voice, I told the representative that I was informed in my debt counseling [which I attended near the end of law school at my school] that it would be an option, based on the amount of money I make.
[3] I am certain, however, that this article will spawn a hefty commentary from bitter law school graduates who were already not happy with the state of the profession.

Re-introduction

Dear Readers,

I considered changing this blog after the completion of law school. However, 7 months after graduation, I continue to come across articles and issues that are relevant to the issues of the first amendment, legal ethics, and technology. When I thought about it, I became a little sad at the idea of completely abandoning that unique topic. Thus, this blog will continue to have the same focus it has. However, since I am no longer writing this blog for a law school course, I will occasionally veer off onto other topics as I see fit.

I am looking forward to continuing on the journey!
DAC

Justice Breyer urges improved education at ABA Opening Assembly

This is a topic that is near and dear to my heart. I have young nieces and nephews, and I am often being told by my family members that it is not appropriate to talk about the law and politics because it is over their heads. I see public education as a way to make children understand how to participate in the political process. Justice Breyer points out (among other topics) that three hundred and eight million Americans are not lawyers. Thus, it is especially important for the American people to understand how law and government work.

Here is the video:


and Here is the article from the ABA.

Twitter in the Appellate Court

Appellate Lawyers Challenged to Write Twitter-Length Briefs

Illinois bar journal and twitter

The Illinois Bar Journal weighs in this month about "tweeting". I am a big advocate of twitter as a news source.

Forced haircut=constitutional violation?

This article caught my eye. It might be because the previous hour of my bar study was dedicated to Constitutional Law. Or it might be because I am the new attorney that discusses Constitutional Law issues for fun.

On the one hand, parents have a right to parent their children as they see fit. The issue, though, is that when you place a child in the public school system, whether or not the parent wants to, they are subjecting their child to the rules of the government. Some will say that if parents have a problem with the way that the school is telling them how to parent, the parent should enroll the child in private school. While this is a valid point, as there is no fundamental right to education, the fact remains that children are legally required to attend school up to the age of 16. This places the parent in an awkward place: either they pay the thousands of dollars to put their children in a private school (while still paying tax dollars to fund the public school), or they check their fundamental right to raise their children at the schoolhouse gate.

The most compelling argument, as I see it, is that while the school has no constitutional right to parent the child from 8am-3pm, the purpose of school is greater served by allowing the school to have a little constitutional leeway. At school, children are taught math, reading, english, science, and the like. However, the real lessons they learn cannot be found in a textbook. School teaches the children to play fair, get along with others, follow rules, and respect authority. Furthermore, it gives children a voice. At school, the child can form his or her own political beliefs, those which might stand in opposite of their parents'. Therefore, while I cannot argue with the parent's constitutional right to raise children, I think a child is best served, as the future of our country, by granting them the ability to fight their own battles. While it appears that the public school is parenting, what it is really doing is forcing children to think for themselves politically.

Kids on civics

In this month's ABA Journal, there is an article titled, "Flunking Civics: Why America's Kids know so little."

I found this to be interesting timing, considering that Honorable Wallace B. Jefferson of the Texas Supreme Court spoke at my law school graduation on May 13th about this very subject. I found his remarks regarding the need to educate the youth and laypeople to be riveting. This is a topic I often discuss amongst my friends and family, and a topic that requires attention.



**Please note that this blog will undergo some revamping, and I am considering starting a new blog to cover a more general discussion of law.

JD.

Congrats to all my fellow 3Ls from Michigan State University College of Law, and those at other law schools! We made it!

Chicago Bar Association Ethics event May 13th.

I know I sais I was going to be absent, but it's hard to stay away when there are so many important things happening in legal ethics land.

This event is right on point for what I have been researching for the past 4 months. Sadly, it is being held on the day I am graduating from law school. If anyone attends, I would love to hear the talking points of the presentation.

Blog thanks

So my blogging about legal ethics is "officially" done. But that doesn't mean I'm going anywhere. It just means I'll be blogging about all topics related to law, including legal ethics. This blog began as a project for a class (fun right?)

Who would have thought you could take such a fun class in law school? Well, you can at MSU Law and I did. The class is called "Topics in Professional Responsibility: The First Amendment and Regulation of Lawyers' Speech."

Frankly, I registered for this class because a) I needed a "paper" class to lighten my last semester 3L exam schedule, b) PR is interesting to me, and c) This same professor taught me PR and I felt in sync with her teaching-style.

But when I prepared for the first day of class, I noticed that the professor indicated on the syllabus that if you'd already completed your Upper Level Writing Requirement (I had), you could be a little more creative with your final paper than the standard 20-something page paper, with 200-something end notes, 12 point, Times New Roman font.

So I just wanted to take a moment to thank Professor Knake for allowing me to be more creative with my project. In addition, I would highly highly recommend that if you attend MSU Law to take Professor Knake for PR or any other class she may offer, because besides really having a passion for teaching, she treats students not as students but future lawyers, and colleagues. I can honestly say that I enjoyed taking both of her classes. (By the way-her Legal Ethics Blog can be found here).

I learned a great deal from this project. Aside from the substantive knowledge regarding lawyer regulation, I learned alot about networking and ALOT about blogging. Also, I feel as though this is a blog I can be proud of and fully intend on using it in future discussions with employers on what sort of impact law school had on me.

Absence

Please excuse my absence, while I try to get through my last 3 law school finals ever. (and by the way, this cartoon could not be more accurate. I lay out the factors of the Zelman Formal Neutrality test in my sleep. Including the proper usage of the Lemon test and Lemon-Agostini test as applied to government aid in religion. *yawn*)

Twitter is the future of America

Unrelated to the topic of legal ethics, but this article intrigued me. Social media is powerful. While twitter lags behind Facebook in users, it is my prediction that within the next 5 years, it will be the main source of news for Americans.

I have a personal twitter account, mostly for the networking potential. Last night, I was studying for law school finals when people started tweeting about how the president was going to address the nation at 10:30pm. Before I even had a chance to turn the television on (and, uh, find CNN on the channel lineup), people were already tweeting about how Osama was dead. There you go. Granted, I still turned on the television to watch the actual presidential address. However, while the tweeting was happening, I kept thinking about how if I had not been on twitter I would have missed a big important event in America.

Then this morning when I read the above article about the man who was live tweeting about the attack, it sealed the deal for me: For those that don't "get" twitter, this is it in a nutshell. It's what is going on each person's corner of the world, 140 characters at a time.

ABA Commission seeks comments on changes to MR 5.4 and 5.5

The ABA Commission on Ethics 20/20 seeks input on possible amendments to the alternative business structures rule (best known as Model Rule 5.4), and the practice of lawyers across borders (thus requiring a possible amendment to Model Rule 5.5).

Interestingly enough, Model Rule 5.4 is one that has been discussed often as having a strange result in the business context. It will be interesting to see what sort of comments are sent into the ABA. However, I have strong concerns for increasing conflict of interest under this rule.

The #1 rule of professional responsibility in the news

This lawyer broke the #1 rule of professional conduct: Don't have sex with your client.

*It is actually Model Rule 1.8, but, even a law student who sleeps through Professional Responsibility remembers this rule. It's also the rule that law students cite when attempting to explain to their family over Fall Break, that yes, lawyers are ethical, and yes, we have rules that we have to follow.

Apple customer sues over location

Today, in internet privacy news: Apple Customer sues over location.

Politicians' Free Speech rights and conflicts of interest rules

In First Amendment news:

Supreme Court considers whether First Amendment protects Politicians from ethics regulations. This is the second time that the United States Supreme Court has considered a Nevada Rule of Ethics.

Facebook used as a tool to collect evidence

Bank robber caught after posting on Facebook

Lawyers, where we're going we don't need lawyers....

At the ABA Techshow 2011, lawyers from across the country came together to discuss, among other things, the future of law practice as related to technology. Please go over to the ABA Journal to read a full article on the discussion. One area I wish to highlight, however, is Carolyn Elefant's discussion of websites such as lawpivot, which allow a person with a legal question to request information from attorneys over the internet.

The running theme under the umbrella of law and technology is that no one is really sure what rules of ethics apply over the internet. Lawpivot is just one more sight that opens up a large can of worms of questions: Is a lawyer client relationship created with each lawyer response? Are conflicts checks being run before the attorney opens the email? The "=How it works" section of the site does not contain disclaimers regarding lawyer-client relationships.

Putting aside the issues of relationship forming and client confidences, isn't crowdsourcing a legal question a very very bad pond to dip our feet in? Confession: I am currently a 3L about to graduate from law school, so my knowledge of the practice of law is limited to my classroom internship/externship/clerking experience. However, I can say with certainty that the practice of law is not an exact science. Isn't this technology forcing the (prospective?) client to decide what attorney he or she believes has the "right" answer? Therefore, isn't it the attorney's best interest to search for the answer that will undoubtedly win the client the most money? Isn't this perpetuating a more litigious society, rather than one that wishes to only bring suit when it is prudent to do so?

Just so we are keeping track, we now have potential violations of the following Model Rules:
1.6 (client confidences), 1.7 (Conflicts of interest: current clients), 1.9 (Conflicts of interest: Former clients), 3.1 (Meritorious Claims and Contentions)

It is my opinion that this is one example of how technology is hurting, rather than helping, the practice of law. (This leads me to a famous quote in Back to the Future, Part II: ‎"The justice system works swiftly in the future now that they've abolished all lawyers." What is the purpose of going to law school for 3 years, taking and passing the bar exam, being sworn in, and paying bar dues only to be a 'crowdsourcing' lawyer? Why even bother with licensing when you can crowdsource?)

Big government's influence on freedom of speech

At this year's ABA Techshow the subjects of the growing use of technology in the legal field was at forefront of the conference.

Here is an interesting video on the effects of the regulation of the Internet. The "effects" which hover over this regulation, of course, are First Amendment free speech issues. For the presenter, the

biggest policy problem concerning Internet regulation—whether it's music-sharing or the dissemination of diplomatic cables via Wiki Leaks—resides in the reality that wealthy campaign financiers, including record labels and copyright holders, can influence the government far greater than the average citizen.

How should the ABA respond to lawyer blogging?

žIn the introduction blog, I discussed the issues that would be addressed in this blog as follows:

1. Under what circumstances should the Model Rules of Professional Conduct govern a lawyer's participation in blogs, given that such activities often have both advertising and non-advertising functions?

This question is indirectly answered in this entry.

Here, I argued that due the increased privacy issue of lawyer blogs (due to the ability of lawyers to advertise on facebook as well as other concerns), a Went for It rule of the ABA would not only be constitutional, but recommended.

I would argue that it is necessary, as this blog has addressed, to have rules that specifically address lawyers’ use of social media.Model rule 7.3 addresses the issue of in-person contact of lawyer. The comments specifically address the issue of ‘real-time electronic communication. Furthermore, Model Rule 7.1 addresses the lawyers’ use of false or misleading information. However, based on all of the concerns previously mentioned in this blog, the combination of these rules does not adequately address lawyers’ use of blogs to solicit services.

Therefore, a new rule should be implemented by the ABA, which states the following:
Any lawyer who intends to use a lawyer blog to solicit lawyer services shall report the web address to the state bar. The comments would then define what is meant by lawyer blog (any website ran, maintained, or written by a lawyer who is licensed under the state bar) and solicitation of services. In addition, the comments would address the fact that the lawyer must keep the state bar updated if the link changes or the lawyer moves its blog to another site.

I realize that there is concern that this new rule may create a substantial amount of duties for the state bar associations. However, as my research has shown me, the practice of law is moving towards the paperless age. It is best for the respective state bars to get a ‘handle’ on this problem now, before the practice of law diminishes to one that is not respected by the layperson.

The second question was phrased as follows:

2. Should the Commission draft a policy statement for the House of Delegates to consider or a white paper that sets out certain guidelines regarding lawyers’ use of blogs? Alternatively, or in addition, should the Commission propose amendments to Model Rules 7.2, 1.18, 8.4(f), 4.2, or 4.3, or the Comments to those Model Rules in order to explain when communications or other activities on blogs might trigger ethical obligations under the Model Rules? If so, what amendments should the Commission propose?

In this entry. I made the statement that lawyer speech, when not involving advertising, deserves a heightened level of protection. Lawyer blogs are no exception. However, due to increased usage of blogs and other social media, lawyers need guidance on how to ensure they remain ethical when using these sites. Accordingly, it is necessary for the ABA to, at minimum, insert comments into some of the rules to tell lawyers how to behave.

Here is what I would add to each of the above rules:

Model rule 7.2: Nothing needs to be added, as this is the rule of attorney advertising which deserves a lower level of protection.

Model rule 1.18: Prospective Clients: A comment may need to be added which indicates that this rule also applies to contact between a lawyer and client on lawyer blogs, as well as in the comments of a blog.

Model rule 8.4(f): Misconduct : This rule has only minimally been discussed on this blog, but a comment may need to be added that addresses the issue of lawyers being friends on facebook with judges. This topic is outside the scope of lawyer blogging but relevant to the issue of lawyers’ use of facebook.

Model rule 4.2: Persons Represented by Counsel, and Model Rule 4.3: These rules should include a comment including the provision that the contact between a lawyer and non-client on a lawyer blog or other social media still constitutes communication.

Model rule 3.6: Trial Publicity: This rule should also include a comment stating that this publicity also applies to lawyer blogs, including comments in lawyer blogs.

Model Rule 1.6: Client confidences: This rule is one that requires a comment to discuss anonymous lawyer blogging.

In this blog post I discussed how anonymous lawyer bloggers are subject to the same regulations as public lawyer bloggers. A comment to rule 1.6 should indicate the following:

Anonymous blogs are still subject to these rules.

While this is a fairly simple statement, it is my belief, as previously discussed, that many lawyers believe they are escaping the regulation of the state bar by writing their blogs as anonymous lawyers. In the next ten years, the legal profession will continue to change, and I believe that blogging will become even more common than it already is. With anonymous speech, it is irrelevant whether the client’s confidences are actually being disclosed to the Internet; rather, I would frame the issue as one of professionalism. If clients know that lawyers blog anonymously, they have a fear of being ‘made fun of’ on their lawyers’ blog. Doesn’t this make an argument that it is important that these blogs are still regulated, due to the overarching concern for lawyer professionalism in the ABA Model Rules?

3. Can lawyers create online discussion boards without disclosing that the discussion boards serve a client development function? If lawyers leave comments on such discussion boards or on blogs, are those comments subject to the Model Rules of Professional Conduct? Should the Commission offer a policy statement or white paper that sets out certain guidelines regarding lawyers’ use of such sites? Alternatively, or in addition, should the Commission propose amendments to Model Rules 1.18 or 7.2 or the Comments to those Model Rules in order to explain when these activities might trigger ethical obligations under the Model Rules? If so, what amendments should the Commission offer?

This question was answered above, with referring to the fact that comments on blogs should similarly be regulated.

Peeps in Law

Fun contest run by the ABA Vote for your favorite Peep diorama. Who said that lawyers are boring?

Lawyers who ignore social media=cavemen who refuse to hunt

The ABA Techshow was held on Monday, where co-presenters Robert Ambrogi and Reid Trautz shared tips on lawyers’ use of social media as a marketing tool. They also advised the audience to not “overreact about ethics rules. Follow the same etiquette for sharing (and common sense) that you would at a professional cocktail party.” I thought this was an interesting statement, seeing as there is great disagreement over the Internet on the role of ethical rules as applied to blogs. While new lawyers may, presumably, understand the inner-workings of social media better than those that have been in the profession for a substantial amount of time, it is still clear that no one knows what rules apply and what rules don’t apply. I will discuss later this week what changes I deem necessary to the ABA Model Rules.

US District Court says Kentucky Bar can restrict attorney speech

US District Court says Kentucky Bar can restrict attorney speech

Update on self-policing of lawyers

Here is a follow-up to this post. This entire debacle presents a further argument that attorney advertising on social media requires further regulation. However, based upon the blogger response, a lawyer blogger might argue that attorney regulation is not necessary due to the sort of ‘self-policing’ that takes place amongst the lawyer community.

Social media requires further self-policing of the profession

Brian Tannebaum's blog presents an interesting angle on lawyers and the use of social media. In this entry of his blog he calls out another lawyer blogger for being “naïve” when the lawyer blogger commented that it is rare for lawyer bloggers to represent themselves.

He also discusses how “futile and paternalistic” it is to call lawyer bloggers out on the inaccuracies of their statements. There are many things to discuss about Mr. Tannebaum’s statements.

1. Model Rule 8.3 requires lawyers to report other lawyers who they know have “[c]ommitted a violation of the Rules of Professional Conduct that raises a substantial question as to the lawyer’s honesty, trustworthiness, or fitness as a lawyer. . . .” Here, though, in most cases, the lawyer who fails to report would make the argument that they did not know the potentially unethical lawyer was committing an ethical violation. Rather, they had merely a strong suspicion.

2. Mr. Tannebaum strongly suggests (if not outright states) that lawyers who use marketing services are acting unethically by doing so. This is a subject I have discussed on several occasions on this blog. In short, the lawyers’ use of marketing tools to ‘sell’ themselves is, in my opinion, one of the best arguments for why the ABA needs to create strict requirements when it comes to lawyers’ use of social media.

3. Mr. Tannebaum strongly suggest that even if there is no outright ethical violation of lawyers’ use of social media, the lawyer’s actions force their reputations to take a hit. Said another way, a lawyer who uses social media walks a tightrope between making themselves available to the public and hurting their reputation. The fine line lies where the lawyer fails to accurately paint a portrait of their professional skills on social media. Therefore, even if there is no official ethical violation reported to the state bar, those who act unethically are being ‘punished’ via the self-policing of lawyers who suspect the statements are inaccurate. This policing comes in the form of being called out on fellow lawyers’ blogs.

4. Mr. Tannebaum also makes the statement that lying is common amongst lawyers who use social media. What is the value of this statement, though? Isn’t it pretty well assumed that lawyers lie? I think that even if this statement is true, it doesn’t take away from the fact that clients trust their lawyers to tell the truth to them. This further strengthens the point that social media needs to be regulated in the same, if not stricter, manner as other sources of media.

Social media makes us better lawyers

In yesterday's ABA Journal, this article, titled, "Has Social Media Tightened Your Writing Style?" discusses how the use of social media makes us better writers. Going one step further, since the very essence of the practice of law is writing, it also suggests that social media makes us better lawyers.

I would tend to agree with this statement. Social media has forced us to constantly think about word composition, sentence verb agreement, and most importantly conciseness. What it used to take us five paragraphs now only takes us one. Twitter only allows 140 characters at a time, and a facebook status is restricted to 421 characters.

I would take this a step further though: not only has social media made us better writers in the way that we write, but also in the manner that we write. This is especially important as lawyers. What used to be a tool only used by a few elite schools, facebook has become a platform for the interaction with friends, family, and just about any other person you've ever met. Many of us have had the scenario occur where an argument resulted over something that was said on facebook or other social media. Therefore, we learn to think before we "speak (type)." I think that, in turn, this causes us as lawyers to learn how to speak professionally on arenas that would not typically be thought as professional. This in turn leads to the ability of lawyers to communicate via email in a manner that is consistently more professional. As a result, social media could thus be thought of as a tool which makes us better lawyers.

Technology and client confidences: New rules on the horizon?

In Anonymous bloggers not escaping regulation of the state bar I discussed how anonymous lawyer bloggers are subject to the same regulations as public lawyer bloggers. Furthermore, as I have previously discussed, public lawyer bloggers are subject to regulations just as lawyers in other settings (such as newspapers, ads, and newsletters).

The question remains: Is this constitutional under the free speech clause of the First Amendment?

The issue of anonymous pamphletting was addressed in McIntyre v. Ohio Elections Comm’n.[1] In McIntyre Ms. McIntyre was charged with violating Ohio Code § 3599.09(A), which prohibited the distribution of pamphlets for the purpose of influencing voters in an election. [2] Some pamphlets contained Ms. McIntyre’s name, others indicated that she was a “concerned parent[] and tax payer.” [3] In holding that the speech was protected under the free speech clause of the First Amendment, the court stated:

Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by the Constitution. The First Amendment affords the broadest protection of such political expression in order to assure [the] unfettered interchange of ideas for the bringing about of political and social change desired by the people.

[4]

The court announced the test, where the law burdens political speech as “exacting scrutiny,” meaning that the restriction will only be upheld if it is “narrowly tailored to serve an overriding state interest.” [5]

The question, therefore, in relation to blogging, is whether anonymous lawyer blogs are political speech. As discussed in previous blogs, there are countless anonymous lawyer blogs. Certainly some do not fall under the realm of political speech (such as those used in a manner consistent with a diary or personal journal). Indeed, many anonymous lawyer blogs cover a breadth of topics; the blog is often not restricted to one narrow subject.

Therefore, certainly some anonymous lawyer blogs fall in the narrow category of political speech. What about the rest? Do they deserve no protection merely because they are not political?

Neither the United States Supreme Court nor any federal circuit courts have considered the proper test for balancing the rights of anonymous online speech and the injured party. [6] As a result, federal and state courts have developed various standards that must be satisfied. [7] In the context of copyright infringement and defamation cases, the courts have generally examined “the degree of burden to apply to a particular plaintiff.” [8] Therefore, in expressive speech issues, courts tend to apply a “high burden test.” [9]

While we are not dealing directly with the issue of defamation, this is where most First Amendment expressive speech issues lie. The court in Dendrite International, Inc. v. Doe No. 3 addressed the issue of what test should be used to determine whether a defamation cause of action existed where the speaker was anonymous. [10] The court held that it would “carefully review[]. . .the complaint to determine whether plaintiff has set forth a prima facie cause of action.” [11]

While the court has never addressed the issue, this test could also be applicable in the lawyer blogging context. The test would be applied as follows: before the anonymous blogger’s identity would be required to be disclosed, the plaintiff, or, in the case of lawyer regulation, the state, would need to set forth a prima facie case of a violation of the Rules of Professional Conduct.
Using this test may present problems, however. One main issue is that it would often be relevant as to who is speaking before the alleged violation would indeed be prima facie shown to be a violation. For starters, setting up a blog requires no verification, per se. I could set up a blog tomorrow and use a pseudonym, and call myself DAC_MD. Blogging sites such as blogger do not require any proof that I am, indeed, an MD before I call myself one. Therefore, it is entirely possible for the state bar to stumble upon a blog where the blogger calls himself or herself a lawyer or JD, but does not hold the actual professional title. Unlike proof for some other types of claims, the very identity is a fact that affects the face of the claim.

Therefore, this test has its flaws. However, it appears that, at least in many anonymous lawyer blogging contexts, it might work to ensure that the Rules of Professional Conduct are being followed.

One issue related to the discussion of the test to be used to regulate anonymous lawyer speech is the problem that lawyers feel the need to remain anonymous to escape the enforcement of the Rules of Professional Conduct. Doesn’t this very fact, by itself, mean that the Rules of Professional Conduct are chilling lawyer speech?

This argument is circular, though. The reason that many lawyers blog anonymously is because they do not want to be regulated by the State bar. This leads to the possible conclusion that, if made public, something on their blog would subject them to sanctions by the state bar. Doesn’t this mean that this is not the type of speech we want to protect? Put another way, if the only reason that lawyer bloggers are choosing to remain anonymous is that they know that there is something about their speech that places them at risk for sanction, shouldn’t this be a reason for the speech to not be protected?

This argument brings back the discussion of the reason for lawyer regulation, which has been discussed in previous blogs. In the context of anonymous blogging, the concern for client confidences is at the forefront. Of the lawyer blogs I have read in order to research this topic, this appears to be what anonymous lawyer bloggers blog about the most. Client confidences, as previously discussed, must be kept between the client and the lawyer for one simple reason: without this rule, clients would not confide in lawyers. Those who blog anonymously think a) they may be not subject to the rules of professional conduct, or b) even if they are subject to the rules, they cannot be “caught” violating the rules because they are anonymous.

Neither of these beliefs, as discussed above, is true. This leads us to the fact that anonymous blogging serves no purpose. The discussion, then, must lead back to the value of lawyer speech in the context of client confidences. Without the protection of a client’s statements to the lawyer, the lawyer’s job would be meaningless. Therefore, the level of speech at issue on the side of the regulators (such as the state) is at its highest.

The value of the lawyer speech, however, could questionably be at its lowest. While lawyers have an interest in being able to inform the public about current issues in the law, I have some trouble finding very much value in someone else’s thoughts and feelings. Conversely, the lawyer may use a client confidence in the way of either a) using the client’s story as a “what not to do” context, or b) informing his or her readers of the inner-workings of the system. These interests fall into the category of furthering the administration of justice. In sharing client confidences for these reasons, the lawyer might teach others what not to do. Furthermore, they may inform other lawyers of how the system works, which, in turn, may make other lawyers better lawyers.

This issue is particularly troublesome in the specific context of blogging. Before the Internet became what it is today, this discussion regarding lawyer speech may not have even existed. The very reason that this discussion is even occurring is because blogs make a record of lawyer speech. While lawyers, in the past, could have published information via newsletters or the like, this was most likely not where most of this type of discussion was taking place. Rather, the level of speech occurring on blogs may be akin to an in-person conversation between lawyers. While it is technically a violation of the Model Rules of Professional Conduct to have a discussion about a client to another person, the Model Rules indicate that this behavior is acceptable if names are not disclosed, and the disclosure is for the purpose of attorney advice. [12] Allowing others to see the exchange that might take place, however, via the Internet, changes the scope of the problem. Therefore, I would conclude that even though there are no inherent First Amendment issues with regulating this speech, the rules need to be amended to account for the complexities that the Internet creates.

[1] McIntyre v. Ohio Elections Comm’n., 514 U.S. 334 (1995).
[2] Id. at 338.
[3] Id. at 337.
[4]Id. at 346.
[5] ]Id. at 347.
[6] Protections for Anonymous Online Speech, 987 PLI/Pat 711, 719.
[7] Supra.
[8] Krinsky v. Doe, 59 Cal.F4th 1154, 72 Cal.Rptr 3d 231 (6th Dist. 2008).
[9] Id.
[10] Dendrite International, Inc. v. Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001).
[11] Id. at 760.
[12] Model rule 1.6 Comment 4 (This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. A lawyer's use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved).

Hiring a lawyer: Too personal of a choice for the internet

This article is a follow up onLawyer blogs: Man in suit on doorstep or flyer in mailbox? However, it raises an issue that I did not consider. This article indicates that only nine percent of people use blogs as a way to find a lawyer. Many of my previous blogs suggested that blogging is the ‘hot’ new way for lawyers to market themselves. (see this post) If this is really the case, there is a disconnect between lawyers who think this is how they should market their services, and the clients they are attempting to attract.

The article suggests the following as one of the reasons for this disconnect:

“[I]t is possible that the selection of a lawyer for a personal legal matter is simply too intimate a decision to come into play in the everyday use of social media.”

This is a provocative idea, albeit one that most of us have considered: even though the Internet, in 2011, essentially makes the world go round, people just can’t be trusted on the Internet. This idea also suggests that the entire discussion regarding the allowance of blogs by the ABA as advertising is moot. Put another way, maybe it’s not worth all the trouble of even figuring out what the rules are because blogs aren’t attracting lawyers anyways. When people hire a lawyer, they want someone they can trust, and there is a stigma of the Internet as an untrustworthy source. I would question, however, why blogs are any different than the yellow pages or newspapers.

Also, if this is really the reason why people aren’t looking at blogs, then why do Fourty-Four percent of people look at lawyer websites? I would suggest that it’s not that the decision of who to hire is not a personal decision, but maybe potential clients don’t actually believe what a lawyer says in their own words. Even though a website is presumably written in the lawyer’s own words, it’s more professional. Therefore, the increase in the lack of professionalism is, perhaps, something that the clients actually would consider before they hire a lawyer.

*The comments of this article suggest that the study was biased due to the population that was surveyed.

Anonymous bloggers not escaping regulation of the state bar

I have discussed anonymous lawyer blogs in previous entries of this blog. Anonymous lawyer blogs would be defined as a lawyer blogger whose identity is either not disclosed or intentionally kept confidential. The first question is why bother making a blog anonymous? The answer to this question is simple for lawyers: The rules of professional conduct. I’ve discussed in numerous blogs the issues presented when a lawyer blog is anonymous.

This article discusses how user names can be found by firms.

This blog discusses how your exact location can be tracked.

And most disconcerting: In this blog I discussed how anonymous blogging does nothing to protect a lawyer from the rules of professional conduct.

Another issue to consider is that if a lawyer blogs anonymously, aren’t they sidestepping the very purpose of blogging in the first place? When I began this project, I naively believed that lawyers blogged because they liked to write, and liked to share their thoughts with the world. While this is not altogether untrue, my research has discovered that this by far not the main reason lawyers blog. They blog to network and to market. Sure, some blog because they actually like getting their thoughts out there (similar to a modern-day diary or journal), but it is clear that those who hide behind anonymity are not reaping in the same benefits as those who make their name known.

Do lawyers have a right to remain anonymous if they wish? This question will be answered in the context of the First Amendment: is there a constitutional right to anonymous speech? And if so, are can anonymous bloggers constitutionally be restricted by the same rules of professional conduct as public bloggers?

Before looking at the First Amendment concerns, we must look at the Model Rules themselves. There are countless Model Rules that may be applicable in the anonymous blogging context.

The Model rules that are applicable in the anonymous blogging context are Model Rule 1.18, Model Rule 4.2 Model Rule 4.3, Model Rule 3.6, Model Rule 1.6, and Model rule 8.4..

Model rule 1.6 is a major concern here. This rule states that “[a] lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).”

Comment 2 of the rule explains:

A fundamental principle in the client-lawyer relationship is that, in the absence of the client's informed consent, the lawyer must not reveal information relating to the representation. See Rule 1.0(e) for the definition of informed consent. This contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct. Almost without exception, clients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld.

This rule makes no exception to situations of anonymity. It is clear that the purpose behind this rule is to encourage clients to speak honestly and openly with lawyers. Therefore, it could be argued that if a client was worried about having the facts of their case broadcasted on the Internet, even if the lawyers’ name remained anonymous, this might hurt the client-lawyer relationship. Seeing as the relationship between the client and lawyer is pivotal to the practice of law, if this relationship ceases to exist, so does the practice of law. Therefore, the issue is clearly that, while these bloggers believe they are not subject to the rules of professional conduct, they can still be sanctioned according to their local bar rules, if the state bar can discover their true personalities. As discussed above, this is not as hard as it seems.

There are countless anonymous lawyer blogs. Some examples are The Namby Pamby, Philadelphia Lawyer, and Woman of the Law. All three of these blogs discuss legal issues while also remaining anonymous. As is it is now clear that these bloggers are still subject to the rules of professional conduct even though they are anonymous, the question remains, is this constitutional? Furthermore, if it is constitutional, should the same rules apply to anonymous bloggers that apply to public bloggers? This will be discussed in a later blog.

Laptops not just for surfing the 'net

This article makes a good argument for why technology is good.

Anonymous blogging: Cowardly?

This piece presents an interesting take on anonymous blogging. Hosteny of the “The Cowardice of Anonymous Bloggers” characterizes anonymous blogging as “cowardly.” Is this really the case though? Can’t anonymous blogging be characterized as a way to be able to express views in a manner that avoids regulation?

Perception vs. Reality of the Legal Profession

Maybe I am pessimistic, or maybe because I am an "older" law student, but I always assumed chart # 2 was what law school would be like. Furthermore, it has pretty much lived up to all of my expectations.

Lawyer speech exposes the man behind the curtain

In Lawyer blogs: The go-to news source, I discussed how lawyer blogs should hold the same constitutional status as newspapers and newsletters due to their similarity. The next issue, therefore, is whether the Model Rules of professional conduct ( Model Rule 1.18, Model Rule 4.2 Model Rule 4.3, Model Rule 3.6, Model Rule 1.6 ) that govern lawyer speech are constitutional. If not, new rules need to be created for the specific issue of blogging. (as was suggested in The September Paper issued by the Ethics 20/20 Commission).

In N.Y. Times v. Sullivan,[1] the United States Supreme Court addressed the issue of whether speech made by the press regarding a public official can constitutionally be sanctioned in a libel action against the newspaper. Holding that the state cannot constitutionally restrict the speech of the press absent actual malice, the court stated, “[s]uch repression cannot be justified, if at all, only by a clear and present danger of the obstruction of justice.” [2]

The Court reasoned that criticism does not lose its constitutional protection merely because it is effective criticism which “[d]iminishes [the] official[s] reputation.”[3] The Court explained that the very purpose the founders cited for the Free Speech clause of the First Amendment was to allow for the criticism of government officials. This is evidenced in the reports prepared by James Madison, one of the founders of the constitution.

The Court further stated that proof of falsity is not enough. Citing Smith v. California, [4] the Court stated,

For if the bookseller is criminally liable without knowledge of the contents, he will tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature. . .And the bookseller's burden would become the public's burden, for by restricting him the public's access to reading matter would be restricted. . .

The Court, therefore, announced that proof of actual malice is required in order for a public official to recover for a defamatory statement. [5] Actual malice is defined as “[k]knowledge that [the statement] was false or with a reckless disregard of whether it was false or not.” [6]

The Court explained this stringent requirement in quoting Whitney v. California

‘Those who won our independence believed. . .that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law-the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.’[7]

It is clear to me that N.Y. Times v. Sullivan indirectly addresses the issue of lawyer speech in at least some contexts: namely trial publicity (Model Rule 3.6) and speech against the judiciary (Model Rule 8.2[8]).

Gentile v. State Bar[9] is directly on point with the issue of trial publicity. In Gentile, defense attorney Gentile made a statement to the press regarding the indictment of his client on criminal charges. [10] Six months after the press conference, Gentile was cited by the Nevada Bar Association for violating rule 3.6 of the state rules of professional conduct. [11] [12] Holding that the Nevada rule was void for vagueness, the court stated that “public awareness and criticism have even greater importance where, as here, they concern allegations of police corruption.”[13] The Court noted that, while Model Rule 3.6 appears to subsume the clear and present danger test discussed above, the Nevada Rule was not being applied in this manner.[14]

The Florida Bar v. Conway presented the issue of lawyer criticism of the judiciary in the specific context at the heart of this blog: lawyer blogging. [15] Conway was disciplined by the Florida Bar for making comments regarding a trial judge on his blog. The Florida Supreme Court ultimately affirmed the lower court’s imposition of sanctions on Conway for blogging. Conway raised First Amendment free speech concerns that the court did not address.

These two examples of real-world cases strike the heart of what is at issue in this blog: what is the value of lawyer speech? More specifically, what is the value of lawyer speech on lawyer blogs? Do lawyer blogs deserve more, less, or the same amount of protection as other sources of lawyer speech and non-lawyer speech?

First, the value of lawyer speech: I believe, as previously discussed, that it deserves at least the same amount of protection as the press. In certain areas, I submit, lawyer speech deserves the highest level of protection that exists. These areas are trial publicity and judicial criticism. While the state bar has good reason to be concerned with issues regarding prejudice to the defense and judicial reputation, the “officer of the court” distinction of lawyers cuts both ways in this context.

Stating that a lawyer is an officer of the court means a lawyer works for the court and thus has to show the utmost respect for it. However, it also means that, because lawyers work for the court, they should know, better than any other individual what is really going on behind the curtain. This places them in a better position than the lay person (ie the press) to criticize the court and the judicial processes. Isn’t this the “political duty” that N.Y. v. Sullivan referred to? How can lay people truly be part of the political process without being given an accurate account of the process from those who are on the front lines?

If lawyer speech is valuable, what is made of lawyer blogs? As previously discussed, lawyer blogs, unlike newspapers, newsletters, or even television, reaches every single person who has an Internet connection. The blog can be read anywhere-at home, at the office, on a couch, or in any public place. It can be as temporary or permanent as the blogger wants. However, a screen shot can be taken of the blog making it a permanently published source. Furthermore, even if the blog is taken down, it can still be accessed using certain types of software. In most ways, blogs are the current-day newspaper. Before the days of the Internet (and still currently used for those newspapers not made available wirelessly), if a person wanted to access an old newspaper article, they could go to the local public library and access an old article via microfiche.

One major difference, however, is the ability to make live comments on a blog. This varies per blog provider and according to the author of the blogger. A blogger can “turn on” comments, or restrict them; requiring the comment to be approved by the author before they are published on the Internet.

As a result, I would agree that lawyer speech requires heightened protection, especially in certain areas. In addition, while blogging is not entirely different from the news sources that existed when the Model Rules were written, new rules need to be written in order to assist lawyers in understanding how these rules are applied to blogging. Furthermore, the ABA needs to be mindful and especially careful in crafting these rules to ensure that they are not infringing on the First Amendment right to Free Speech.

[1] N.Y. Times v. Sullivan, 376 U.S. 254 (1964)
[2] Id. at 273.
[3] Id.
[4] Smith v. California, 361 U.S. 147, 153-154 (1959)
[5] Id. at 279-280.
[6] Id.
[7] Whitney v. California, 274 U.S. 357, 375-376 (1927) (emphasis added)
[8] Although it should be noted that Model Rule 8.2 encompasses the actual malice standard required to prove falsehood in a statement against a public official.
[9] Gentile v. State Bar, 501 U.S. 1030 (1991).
[10] Id. at 1030.
[11] Id. at 1030.
[12] Nevada Rule 177(1) prohibits an attorney from making “an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of material prejudicing an adjudicative proceeding”
[13] Id. at 1035 (quoting Sheppard v. Maxwell, 384 U.S. 333, 350 (1966)).
[14] Id. at 1037.
[15] The Florida Bar v. Conway, 996 So.2d 213 (2008)

Twitter and lawsuits

Once again, we’re given the message of be careful what you tweet

Facebook isn't just for college kids wasting time

Knowledge of facebook, twitter, and blogging can land you a job a prestigious law firm.

The interesting thing about this job opening is that it does not require a law degree. However, under Model Rule 5.3, the social media guru is still required to follow the same rules as an attorney.

Excuse me while I log out of facebook and go apply to this job.

The right to be forgotten?

Do Americans really have a right to be forgotten?

This is a site my husband alerted me to the other day. So much for being forgotten once it’s been taken offline. (This site allows a person to type in a web address that existed at any point in time on the internet, ever. If, say, you had a site, say, back in 1999, you could type in the web address, and the year, and you would be taken back to that site, as it existed, in 1999. Scary stuff for lawyers who would rather their employers not know what they did in college).

Who needs Westlaw when you've got lawyer blogs?

This blog discusses how blogs have become, rather than Westlaw, the primary research tool for lawyers. This argument strengthens my point in Lawyer blogs: The go-to news source that lawyer blogs are the current day equivalent to the newspaper or newsletter.

Lawyer blogs: The go-to news source

In Lawyer blogging: Current-day soapbox?, I discussed how the Supreme Court needs to re-examine its jurisprudence regarding the internet. However, even if the internet never becomes a public forum in the Supreme Court’s eyes, the regulation of lawyer blogs still have First Amendment concerns under N.Y. Times v. Sullivan. [1]

Before N.Y. Times v. Sullivan and its counterparts can be examined, we must first decide whether blogs could be considered news sources, and whether this causes blogs to be subject to regulation. Once it is determined that regulation exists, we will examine the First Amendment jurisprudence under N.Y. Times v. Sullivan

One of the questions posed by the September Paper released by the ABA Commission on Ethics 20/20 (discussed here was the following:

[S]hould the Commission propose amendments to Model Rules. . .1.18, 8.4(f), 4.2, or 4.3, or the Comments to those Model Rules in order to explain when communications or other activities on blogs might trigger ethical obligations under the Model Rules? If so, what amendments should the Commission propose?

First, let’s examine some blogs.

Not Guilty is a blog written by Mirriam Seddiq, a criminal defense and immigration attorney. Her blog features anecdotes from practice, as well as the current state of the law.

The Medical Malpractice Blog at Levin & Perconti focuses on current legal issues surrounding medical malpratice.

The JAA Blog is a blog that focuses on the Broward County [Florida] courts and judiciary.

Lastly, the Privacy Law Blog, written by attorneys at Proskauer, focuses on the summary and analyis of law relating to the issues surrounding privacy law.

It is clear that, by examining these blogs, lawyer blogs are nothing more than the current day newsletter. However, the major difference is that anyone with an internet connection has access to the blog. Furthermore, they may also function as newspapers. However, just as the comparison with newsletters, these blogs would be able to reach a much higher percentage of the population. In addition, unlike newspapers that are printed, blogs can be updated multiple times a day, in real time, shortly after an event occurs. While newspapers often have an early edition or a late edition newspaper, if something, say, happens at 3:58am, and the newspaper is set to print its late edition by 4am, the event will not be covered until the next press day.

More significantly, newspapers and other print media are meant to be read and discarded. With a lawyer blog, there is an online imprint of the blog. Granted, the author of the blog can make the choice to remove a particular blog; however, screen shots can still be taken. ‘

Therefore, it is clear that lawyer blogs at a minimum, deserve the same level of protection that newspapers receive. A number of restrictions are placed on lawyers regarding the amount and type of speech a lawyer is allowed to use regarding current and prospective clients, as well as the state of the case.

Model Rule 1.18 governs the lawyers’ communication with prospective clients. Model Rule 4.2 deals with the lawyers’ communication with persons unrepresented by counsel, and Model Rule 4.3 governs the lawyers’ communication with unrepresented persons.

Also at issue in the case of lawyer blogs as news sources are Model Rule 3.6 (Trial Publicity), and Model Rule 1.6 (Client Confidences).

The overarching theme of all of these rules is that a lawyer is restricted in what can be said to those whom are not their clients. Furthermore, a lawyer is restricted in what he or she can tell the public about the client. It is imperative, therefore, that we examine the First Amendment concerns because lawyer blogging, if effective, is intentionally public; therefore, the information which is disseminated may reach a wide variety of audience whom would otherwise not have access to the information. This will be discussed in the next blog.


[1] N.Y. Times v. Sullivan, 376 U.S. 254 (1964)

Can blogging really land you a job?

This article discusses how May 2011 graduates are getting jobs through using social media.

Here is how it works: You blog about a topic, you get people to read the blog, and when you go on an interview, you can point to the blog as a source of interest. If you're lucky, the person interviewing you has actually heard of your blog; thus, you skip the step of attempting to convince them that you are interested in X area of law. This is of particular interest because interviews are hard to come by and jobs are even harder to come by. If you're lucky enough to be given an interview, there is a chance you will be restricted to a very small amount of time (ie 15 minutes) to argue your "case" as to why you are the best fit.

I'd like to hear about others who have obtained jobs this way. I am not altogether convinced that this works. Also, I am somewhat fearful that having the blog might cause a potential employer to not want to hire you. (or is the old addage used for being friends with a person also true for future employers: you wouldn't want to work for someone who doesn't like what you represent?)

The intersection of the Westboro protestors and lawyer blogging

The SCOTUS Synder v. Phelps opinion (ABA Journal synopsis here) has little to do with social media, but very relevant to the topic of Free Speech under the First Amendment.

(also, it is all the online law school community could talk about yesterday, which shows the impact that social media has on the dissemination of important matters such as this one. Within fifteen minutes of logging onto my laptop yesterday, I was informed that this opinion had come down, without having opened a newspaper or turning on the television)

Here are some powerful words from the Court, which ultimately held, in an 8:1 decision, that Phelps’ Free Speech rights must be upheld:

“Such a risk is unacceptable; in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.”

And this is at the core of the First Amendment:

“Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here— inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.”

The intersection between blogging and news sources as free speech under the First Amendment will be discussed in a later blog. In short, the Court uses the New York v. Sullivan [1] test to determine that the Westboro speech was protected. It stated,

“Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment.”

My question is this: Are the Westboro Baptist Church protestors different than, say, an attorney who speaks unfavorably about a judge on a blog? (remember Kristine Peshek ? I don’t believe they are. In addition, blogs are arguably of a greater public concern because they are a permanent record of a public matter.

[1] New York Times v. Sullivan, 376 U. S. 254, 270 (1964).

Lawyer blogging: Current-day soapbox?

As I discussed in this post regarding the discussion on whether blogs are advertising under the ABA standards, some blogs fall into the gray area of the definition of advertising. While some blogs are unquestionably advertising, others either may clearly not fall under the umbrella of advertising. Therefore, the answer to the ABA’s question on how blogs should be regulated becomes slightly more controversial where non-advertising lawyer blogs are concerned.

If a blog is not advertising the issue is whether the lawyer is subject to other Rules of Professional Conduct, and if so, whether these rules are constitutional under the First Amendment.

If lawyer blogs are not advertising, then what are they? I believe blogs could be categorized under several different umbrellas, including:

1. Public forums
2. News sources

For the topic of this post alone, I will limit my discussion to public forums. There are three classifications of forums: (1) Traditional public forums, (2) Limited public forums (or designated public forums), and (3) Closed forums.

Where an area is classified as a traditional public forum, the state may restrict the conduct only where the regulation is narrowly tailored to achieve a compelling state interest. Int’l Society for Krisha Consciousness, Inc., v. Lee. [1] A designated public forum is one that the state has granted limited access, and which the state proscribes such conduct may occur. [2] This conduct is subject to the same limitations as a traditional public forum. Lastly, where the forum fits in neither the traditional public forum nor designated public forum framework, the state regulation must only pass rational basis. [3]

First, a traditional public forum is one that has a “principal purpose...the free exchange of ideas.” [4] Furthermore, a traditional public forum is one in which the government has the “power to preserve the property under its control for the use to which it is lawfully dedicated.” [5] A public forum is not created merely because members of the public are permitted freely to visit a place owned by the government; the decision to make a forum open to the public must be intentional. [6] In Krishna, holding that airport terminals are not traditional public fora, the court reasoned that airports have only recently achieved their current size and character. Furthermore, due to the short history of air transport, it is only recently that religious and political groups have used airport terminals for the distribution of literature and similar activities.

Justice O’Connor’s concurring opinion discusses how the definition of the public forum must be expanded to meet the expectations of the current age. She states:

In my view, our public forum doctrine must recognize [the] reality [that an airport is one of the few government owned spaces where may persons have extensive contact with other members of the public], and allow the creation of public forums that do not fit with the narrow tradition of streets, sidewalks, and parks. We have allowed flexibility in our doctrine to meet changing technologies in other areas of constitutional interpretation, and I believe we must do the same with the First Amendment. [7]

The issue remains, therefore, whether the internet is, in fact, a public forum. This issue has been addressed in several United States Supreme Court cases:

In Reno v. ACLU the court addressed the issue of whether two federal statutory provisions “protecting minors from indecencies on the internet” were constitutional under the freedom of speech clause of the First Amendment. [8] Holding that the statutes were unconstitutional on the basis of vaguess and overbreadth, the court stated:

Through the use of chatrooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of web pages, mail explorers, and newsgroups, the same individual can become a pamphleteer. . . The content on the internet is as diverse as human thought. [9]

However, the issue of whether the internet was indeed a public forum was never reached due the fact that the court found the statute to be vague and overbroad.

The United States Supreme Court addressed the issue of the internet as a public forum in U.S. v. American Library Ass’n, Inc. [10] In Library Ass’n, the court addressed the issue the usage of the internet in the public library. The court held that the internet is neither a traditional nor limited public forum. In reasoning that the public forum doctrine does not apply, the court stated:

[T]his resource, which did not exist until quite recently, has not “immemorially been held in trust for the use of the public and, time out of mind,…been used for the purposes of assembly, communication of thoughts between citizens, and discussing public questions.” [11]

The court also stated that, to qualify as a limited public forum, the government must make an affirmative choice to open up the property for use as a public forum. [12] The court reasoned that, in the case of the internet, the government did not create the internet in order to create a public forum for web publishers. Rather, the internet is offered as a service at the library in order to facilitate research, learning, and recreational activities.

Turning to the issue of blogging: it is clear that the United States Supreme Court has not yet been willing to extend the public forum doctrine to the internet. Is this right, though? Our latest jurisprudence regarding the internet occurred in 2003, 8 years ago. In 8 years, many changes have been made to the internet. While the internet was once a place where email could be exchanged, and chat rooms could be visited, it is now the very center upon which the world turns. On the internet, among other things, we can shop, connect with old friends and new, meet significant others, read the daily news, check the daily weather, and countless other tasks.

There is no way that our founding fathers could have anticipated the existence of the internet. In addition, even if the internet as a whole would not be considered by the Supreme Court to be a public forum, what about blogging specifically? Seeing that blogging could be considered to be akin to a news source, wouldn’t it be relevant that the founders intended newspapers to receive the highest protection? I would argue that blogs are traditional public forums. Under the O’Connor approach, the public forum doctrine must be expanded to facilitate the changing times of the technology world we currently live in.

Therefore, if we were to take the O’Connor approach to the public forum doctrine, for a regulation of a lawyer blog (or any blog, for that matter) to be held as constitutional under the First Amendment, the regulation must be narrowly tailored to achieve a compelling state interest. [13] This standard is stricter than the intermediate standard used in the commercial speech realm.

In a later blog I will discuss (1) the state’s interest in regulating lawyer speech, and (2) whether this interest is narrowly tailored under the Model Rules of Professional Conduct.

[1] 505 U.S. 672, 679 (1992).
[2] Id.
[3] Id. at 679.
[4] Id. at 679 (quoting Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 800 (1985)).
[5] Id. at 679-680 (quoting Greer v. Spock, 424 U.S. 828, 836 (1976)).
[6] Id. at 780 (citing Cornelius, 473 U.S. 788, 802(1985)).
[7] Id. at 698 (O’Connor, J., concurring).
[8] 521 U.S. 844 (1997).
[9] Id. at 870.
[10] 539 U.S. 194 (2003).
[11] Id. at 205 (quoting Krishna, 505 U.S. at 679).
[12] Id. at 206.
[13] Krishna, U.S. at 679.

The lawyers' right to tweet

An article in the February 25th edition of the ABA Journal presents an issue at the very core of this blog.

**

The statement which is of particular interest is George Washington University Law School Professor Jonathan Turley’s response to the firing:

He stated:

"There is obviously a great deal of anger over these comments, but the real question is whether a public employee like Cox has any protection for comments made as a private citizen."

The issue that we must struggle with is whether lawyers, as “officers of the court” are ever really considered to be private citizens. It is clear that, as lawyers, were are held to the state bar’s Rules of Professional Conduct 24 hours a day, 7 days a week. Our bar cards are not retired for the evening when we leave the office. Indeed, there is no question that lawyers are held to a higher standard than laypeople. Therefore, while the firing of a layperson might otherwise be an infringement of the First Amendment right to Free Speech, a separate analysis must be conducted with regard to lawyers.

When a lawyer speaks, even if not done on company time, he or she is representing not only the company that they work for, but also the law. Here, there is not only an issue that Cox was an attorney, but also that he was employed by the Indiana Attorney General’s Office. Therefore, not only was his statement made as an officer of the court, but also, as a State employee.

In this situation, I believe the waters are further muddied by the State+officer of the court combination. While it could be argued that as officers of the court we have a greater right than the layperson, due to the fact that we know the law, where the State becomes involved, the issue is framed in a significantly different manner.

It comes down to the issue of professionalism: How can the general public feel safe that such a man represents the State in court? How can they ensure that their tax dollars are adequately being spent? What sort of message does the tweet send to the general public about he sort of attorneys that represent the state?

**A screenshot of the actual tweet that caused Cox to be fired.

Good lawyers use facebook

This is an expansion to an earlier post regarding attorneys using google during the voir dire process of jury selection.

Basically, the message here is that budding attorneys better get on the social network bandwagon, if they have any hope of rising to the top. All the more reason to make sure that we are acting ethically in the process of using social media.

Further evidence that anonymous blogging presents issues for lawyers

This article raises the very point I was making in this blog entry.

Ghostblogging might be a risk to law firm reputation

Law firms risking reputations for ghostblogging

Ghostblogging presents a myriad of issues. Speaking from the standpoint of legal ethics, Model Rule 5.3 is a genuine concern.

Lawyer blogs banging down the door of potential clients.

In this blog I discussed whether lawyer blogs fit more closely in the category of in-person solicitation, or direct mail. While I concluded that there is no categorical rule the court can use to decide where lawyer blogs fit, Florida Bar v. Went For It [1] might provide some guidance on the distinction.

In Went For It, the Florida Bar adopted new standards as part of a 1989 study regarding attorney advertising. These standards placed a 30 day moratorium on direct and indirect lawyer solicitation of accident victims and their family members. Plaintiff, Stewart McHenry, owner of Went For It, Inc, a lawyer referral service, filed suit, arguing that the regulations were a violation of his First and Fourteenth Amendment rights to the United States Constitution.

In holding that the Florida Bar regulations on advertising were constitutional under the First Amendment, the court stated:

We have always been careful to distinguish commercial speech from speech at the First Amendment’s core. Commercial speech enjoys a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values. And is subject to modes of regulation that might be impermissible in the realm of noncommercial expression.

Accordingly, the court applied the intermediate scrutinyCentral Hudson test:

1. The government must assert a substantial interest in support of its regulation;
2. The government must demonstrate that the restriction on commercial speech directly and materially advances that interest; and
3. The regulation must be narrowly drawn.

First, regarding the government’s substantial interest, the court listed three government interests it deemed as substantial:

1. The government’s interest in establishing licensing standards;
2. The protection of well-being, tranquility, and privacy of the potential clients’ home, and
3. States can legislate to avoid intrusion

The court highlighted the main interest of the State as protecting the well-being, tranquility, and privacy of the potential clients’ home. The court reasoned that the purpose of the ban is to “forestall the outrage and irritation” with the legal profession when the victims have the accident fresh in their minds. Therefore, the court emphasized its concern for the appearance of the lack professionalism where an attorney makes direct contact with a recent accident victim.

Next, regarding the material advancement of the government’s interests, the court indicated that the State provided statistical and anecdotal data which displayed the fact that the Florida regulations would further the State’s goals.

Lastly, regarding whether the regulations best “fit” to serve the State’s interests, the Court stated that there is no other alternative in regulating the speech in a less restrictive way. Furthermore, the regulation merely imposes a moratorium; it does not impose an outright ban.

The court distinguished this case from Shapero in several ways. First, unlike Shapero, the treatment of the potential client’s privacy was casual. Next, Shapero dealt with a broad ban on all advertising, rather than a mere moratorium. Lastly, the State in Shapero did not give any evidence of actual harm caused by targeted direct mail.

The question remains with respect to blogging: Is the regulation of blogging constitutional under the First Amendment? Due to the inconsistency of Supreme Court’s rulings with respect to attorney speech, the answer to this question becomes even fuzzier than it would otherwise be.

Putting all of the attorney cases together, we know:
1. The Central Hudson test is the current test for determining whether attorney speech regulations are constitutional under the United States Constitution;
2. The ban of in-person solicitation of clients is constitutional under Ohralik;
3. Outright bans on attorney advertising via direct mail are unconstitutional under Shapero;
4. 30 day moratoriums on attorney advertising via direct mail are constitutional under Went For It.

As discussed previously, lawyer blogs could arguably be either direct mail or in-person solicitations. While Went For It did not provide any distinction between in-person and direct mail analysis, the court provided clarification to Shapero when it discussed the fact that the privacy of the individuals in their homes is the most important interest due to the issue regarding the appearance of attorney professionalism.

In the blogging context, this is especially troublesome. While lawyers are not approaching potential clients in the traditional sense, a lawyer can “approach” a client over the internet. While sending an advertisement in the mail can make this same level of contact, the level of privacy over the internet is much more concerning. Unlike direct mail, a lawyer can contact a potential client in real time, meaning that the lawyer can, if they wish, speak to the client as the client is in the privacy of their own home, while they are in their own home. A potential client can choose not to look at lawyer blogs. However, with the invention of such sites as facebook, this becomes increasingly more difficult. Facebook give the availability of advertisers to see what people might be interested in.

Here is an example:

If any of the links are clicked on, a person would be led to that site’s page. The court’s main concern with the lack of privacy is that professionalism of attorneys may suffer due to lawyers’ ability to contact potential clients when they are at their most vulnerable. Is this concern any lower for lawyer blogs? Certainly not. Therefore, I would argue that state bar regulations for lawyer blogs that are no more restrictive than the standards set forth in Went For It would not only be recommended, but constitutional. In addition, it is my opinion that the restrictions should be at least as restrictive as those in Shapero. Even though the restrictions were held as unconstitutional in Shapero, lawyer blogs are more intrusive on a potential clients’ privacy.

[1] 518 U.S. 618 (1995).

Google=a trial lawyer's new second chair

Thus is not directly related to the issue of social media, but this does present the very point to which this blog speaks. Technology has changed the way we practice law. Instead of pretending that the practice of law is, in 2011, what it was in the days that the Rules of Professional Conduct were created, we must embrace the new era.

Social media =/=In person contact

I found Nicole Black’s response to the September paper on Ethics 20/20 to be intriguing. Her thesis to the September paper focuses on the fact that “[o]nline interaction simply is an extension of offline interaction. It does not, by virtue of its unique format, merit a separate category requiring additional, more stringent oversight. ” [1]

I believe this characterization of social media drastically oversimplifies the medium. As I have discussed previously, at length, the differences between blogging and face-to-face interaction are numerous. The largest difference is this: face-to-face, it is significantly more difficult for a person to pretend to be someone they are not.

Let’s take the following example: A male lawyer enters an accident victim’s hospital room. He is middle-aged and disheveled-looking. He tells the woman he can represent her in a lawsuit against the driver of the other car. The accident victim takes one look at lawyer and realizes that he can’t be trusted. The accident victim tells the lawyer to leave her room.

Now take this same example, but over the internet: A lawyer links an accident victim to his blog via facebook. The lawyer pays for services on facebook that allows his blog address to show up on the sidebar of anyone who mentions car accidents on their facebook. The woman clicks the link, and is lead to the same lawyer’s page as example #1. The picture on the blog contains one taken of the lawyer from 15 years ago, wearing a fresh-pressed suit, with a fresh haircut. The woman decides this is a man she can trust to represent her.

While there is little that can be done with respect to how images are perceived over the internet, the fact is that, arguably, the woman may have felt more coerced after being contacted over the internet than she was when the lawyer came to visit her face to face.

Not only is there an issue over the appearance of the attorney, there is also the issue of a perceived feeling of safety while on the internet. Due to the perceived anonymity, people feel as though they can be genuine on the internet; therefore, they feel that others are also being genuine. This is obviously a fallacy on both counts; however, it may result in greater use of coercion over the internet than would have otherwise existed in person.

Therefore, I would conclude that, while the actual degree of the new rules is still somewhat uncertain. However, one conclusion is certain: the current ABA rules do not adequately address lawyers’ use of social media. It follows that the rules need to be amended, or new rules must be created to meet the growing need for such regulations.

[1]COMMENTS, Technology Working Group Issues Papers, “Client Confidentiality and Lawyers’ Use of Technology” & “Lawyers’ Use of Internet Based Client Development Tools” , Nicole L. Black, p. 10-11