Wednesday, March 30, 2011

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.

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).

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