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)