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.