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.
Showing posts with label long post. Show all posts
Showing posts with label long post. Show all posts
Wednesday, April 20, 2011
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:
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).
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).
Wednesday, March 23, 2011
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:
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.
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.
Wednesday, March 16, 2011
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,
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
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)
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)
Wednesday, March 9, 2011
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)
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)
Wednesday, March 2, 2011
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:
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:
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:
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.
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.
Wednesday, February 23, 2011
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:
Accordingly, the court applied the intermediate scrutinyCentral Hudson test:
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).
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).
Wednesday, February 16, 2011
Lawyer blogs: Man in suit on doorstep or flyer in mailbox?
This post discussed the seminal attorney-advertising case, Bates v. State Bar of Arizona. The year after Bates v. State Bar of Arizona [1], the Court took up the issue of attorney speech once again, in Ohralik v. Ohio State Bar. [2] Ohralik dealt with an attorney who personally visited the home of an accident victim, after learning that an automobile accident had occurred. In affirming the Ohio Supreme Court’s ruling, the United States Supreme Court held that in person solicitation of legal services can be constitutionally banned by the state.
The Court stated that in-person solicitation by a lawyer who is seeking employment is a “business transaction in which speech is an essential but subordinate component.” Furthermore, it stated that commercial speech is afforded limited protection with regard to the First Amendment. The court listed two interests of the state: (1) protection of consumers and (2) protection of the professionalism of the legal career.
It reasoned that, first, regarding the protection of consumers, the interest of the state is strong because lawyers act in a government function as “officers of the courts.” Furthermore, the court discussed that while lawyers are self-employed business men, they are also “trusted agents of their clients, and as assistants to the court in search of a just solution to disputes.” Next, regarding the issue of professionalism, the court reasoned that the “evils of solicitation” are especially strong in the context of in-person solicitation.
Ten years later, the United States Supreme Court took a step back from Ohralik when it decided Shapero v. Kentucky Bar Ass’n. [3] In Shapero, petitioner sent a letter to the Kentucky Bar Association for approval, which he planned to send to potential clients who have had foreclosure suits filed against them.
In holding the banning of the letter as unconstitutional under the First Amendment, the court stated that the “relevant inquiry is not whether there exist potential clients whose ‘condition’ makes them more susceptible to undue influence, but whether the mode of communication poses a serious danger that lawyers will exploit any such susceptibility.” The Court also stated that “[o]ur recent decisions have been grounded in the faith that the free flow of commercial information is valuable enough to justify imposing on would-be regulators the cost of distinguishing the truthful from the false, the helpful from the misleading, and the harmless from the harmful.”
Comparing this case to Ohralik, the court reasoned that targeted direct-mail poses “much less risk of overreaching or undue influence” than in-person solicitation. The court went on to say that in-person contact, unlike direct mail, involved the “coercive force of personal presence of a trained advocate.” In short, the person, when presented face-to-face with a proposition by an attorney, feels added pressure to give the attorney a yes or no answer regarding inquiries. With regard to the direct mail at issue in this case, the court noted that mail is something that can be easily put in a drawer and ignored; in person solicitation is not. Furthermore, the court reasoned that, unlike in person solicitation, direct mail can be easily regulated due to the fact that a permanent record of the advertisement exists.
Before discussing the most recent Supreme Court holdings on this matter, a preliminary issue exists with regard to the topic of lawyer blogging. Before it can even be decided whether lawyer blogging can be regulated, and how lawyer blogging can be regulated, we must discuss what lawyer blogging is. Once we are able to answer what category blogging fits into, it will be easier to discern whether the court should treat blogs more like Ohralik or Shapero.
Therefore, the narrow question is this: is blogging more like in-person solicitation or more like direct mail? My argument would be that is a hybrid of both.
First, regarding in-person solicitation, unlike a face-to-face conversation, the interaction between the attorney and client takes place behind the computer screen, and, perhaps, in each persons’ respective homes. Therefore, the client or potential is “protected” from any on-the-spot coercion that may take place when faced with a live person. In addition, unlike a live person, who a potential client may not intend to interact with, many lawyer blogs are only reached when the client voluntarily decides to “visit” the site. There is danger, however, where lawyers solicit their blogs on areas such as facebook; a client may click on a link for the lawyer blog without realizing what they have just clicked on. This interaction may be akin to being confronted by a lawyer face-to-face.
In addition, the argument could be made that, while the coercion may be absent, there is a serious invasion of privacy into a potential client’s home when a lawyer has the ability to “reach out” to potential clients over the internet. Because the potential client is most likely in their home, and potentially relaxing on the couch, or even in bed, there is a serious concern that lawyers could actually become more coercive because the potential clients feel relaxed and at ease. Furthermore, the court may be concerned with the ability of lawyers to invade even the most private areas of potential client’s lives: their homes. Therefore, even though blogging is not as coercive as face-to-face contact, the privacy concerns are an issue that the court may need to address in the future.
Next, regarding direct mail, blogging is, arguably, less intrusive than direct mail. Unlike direct mail, a potential client would most likely seek out a lawyer blog. The court discusses in Shapero the idea that a potential client can just choose to throw away a piece of mail they do not wish to look at. This same idea rings true of blogs: if a potential client doesn’t want to look at it, they can just not visit the site. The link that might be sent to a potential client might be similar to a piece of mail being sent to a potential client.
Also, like direct mail, blogs can easily be regulated. As discussed in previous posts of this blog, internet web addresses are tracked via IP addresses. Furthermore, visit to a particular site can be tracked via various programs. For example, blogger.com has a feature that allows the user to examine who has viewed the site, and from which source. It follows that the State Bar can easily regulate lawyer blogs by requiring lawyers to submit the web address of their blogs, just as the state bar allows the lawyer to submit potential advertisements for approval.
As a result, blogs fit squarely between in-person solicitation described in Ohralik, and direct mail, as described in Shapero. This blog will discuss in further detail, in a later blog, where blogs fit into the current jurisprudence of First Amendment lawyer speech. It is clear that lawyer blogs can not categorically fit squarely into in-person solicitation or direct mail.
[1] 433 U.S. 350 (1977).
[2] 436 U.S. 447 (1978).
[3] 486 U.S. 466 (1988).
The Court stated that in-person solicitation by a lawyer who is seeking employment is a “business transaction in which speech is an essential but subordinate component.” Furthermore, it stated that commercial speech is afforded limited protection with regard to the First Amendment. The court listed two interests of the state: (1) protection of consumers and (2) protection of the professionalism of the legal career.
It reasoned that, first, regarding the protection of consumers, the interest of the state is strong because lawyers act in a government function as “officers of the courts.” Furthermore, the court discussed that while lawyers are self-employed business men, they are also “trusted agents of their clients, and as assistants to the court in search of a just solution to disputes.” Next, regarding the issue of professionalism, the court reasoned that the “evils of solicitation” are especially strong in the context of in-person solicitation.
Ten years later, the United States Supreme Court took a step back from Ohralik when it decided Shapero v. Kentucky Bar Ass’n. [3] In Shapero, petitioner sent a letter to the Kentucky Bar Association for approval, which he planned to send to potential clients who have had foreclosure suits filed against them.
In holding the banning of the letter as unconstitutional under the First Amendment, the court stated that the “relevant inquiry is not whether there exist potential clients whose ‘condition’ makes them more susceptible to undue influence, but whether the mode of communication poses a serious danger that lawyers will exploit any such susceptibility.” The Court also stated that “[o]ur recent decisions have been grounded in the faith that the free flow of commercial information is valuable enough to justify imposing on would-be regulators the cost of distinguishing the truthful from the false, the helpful from the misleading, and the harmless from the harmful.”
Comparing this case to Ohralik, the court reasoned that targeted direct-mail poses “much less risk of overreaching or undue influence” than in-person solicitation. The court went on to say that in-person contact, unlike direct mail, involved the “coercive force of personal presence of a trained advocate.” In short, the person, when presented face-to-face with a proposition by an attorney, feels added pressure to give the attorney a yes or no answer regarding inquiries. With regard to the direct mail at issue in this case, the court noted that mail is something that can be easily put in a drawer and ignored; in person solicitation is not. Furthermore, the court reasoned that, unlike in person solicitation, direct mail can be easily regulated due to the fact that a permanent record of the advertisement exists.
Before discussing the most recent Supreme Court holdings on this matter, a preliminary issue exists with regard to the topic of lawyer blogging. Before it can even be decided whether lawyer blogging can be regulated, and how lawyer blogging can be regulated, we must discuss what lawyer blogging is. Once we are able to answer what category blogging fits into, it will be easier to discern whether the court should treat blogs more like Ohralik or Shapero.
Therefore, the narrow question is this: is blogging more like in-person solicitation or more like direct mail? My argument would be that is a hybrid of both.
First, regarding in-person solicitation, unlike a face-to-face conversation, the interaction between the attorney and client takes place behind the computer screen, and, perhaps, in each persons’ respective homes. Therefore, the client or potential is “protected” from any on-the-spot coercion that may take place when faced with a live person. In addition, unlike a live person, who a potential client may not intend to interact with, many lawyer blogs are only reached when the client voluntarily decides to “visit” the site. There is danger, however, where lawyers solicit their blogs on areas such as facebook; a client may click on a link for the lawyer blog without realizing what they have just clicked on. This interaction may be akin to being confronted by a lawyer face-to-face.
In addition, the argument could be made that, while the coercion may be absent, there is a serious invasion of privacy into a potential client’s home when a lawyer has the ability to “reach out” to potential clients over the internet. Because the potential client is most likely in their home, and potentially relaxing on the couch, or even in bed, there is a serious concern that lawyers could actually become more coercive because the potential clients feel relaxed and at ease. Furthermore, the court may be concerned with the ability of lawyers to invade even the most private areas of potential client’s lives: their homes. Therefore, even though blogging is not as coercive as face-to-face contact, the privacy concerns are an issue that the court may need to address in the future.
Next, regarding direct mail, blogging is, arguably, less intrusive than direct mail. Unlike direct mail, a potential client would most likely seek out a lawyer blog. The court discusses in Shapero the idea that a potential client can just choose to throw away a piece of mail they do not wish to look at. This same idea rings true of blogs: if a potential client doesn’t want to look at it, they can just not visit the site. The link that might be sent to a potential client might be similar to a piece of mail being sent to a potential client.
Also, like direct mail, blogs can easily be regulated. As discussed in previous posts of this blog, internet web addresses are tracked via IP addresses. Furthermore, visit to a particular site can be tracked via various programs. For example, blogger.com has a feature that allows the user to examine who has viewed the site, and from which source. It follows that the State Bar can easily regulate lawyer blogs by requiring lawyers to submit the web address of their blogs, just as the state bar allows the lawyer to submit potential advertisements for approval.
As a result, blogs fit squarely between in-person solicitation described in Ohralik, and direct mail, as described in Shapero. This blog will discuss in further detail, in a later blog, where blogs fit into the current jurisprudence of First Amendment lawyer speech. It is clear that lawyer blogs can not categorically fit squarely into in-person solicitation or direct mail.
[1] 433 U.S. 350 (1977).
[2] 436 U.S. 447 (1978).
[3] 486 U.S. 466 (1988).
Tuesday, February 8, 2011
Bates fears realized in the lawyer blogging context
In this post I discussed how that, undoubtedly, some lawyer blogs would fit the definition of advertising according to the vision of the ABA when the Model Rules were written. Therefore the question remains: how should the ABA regulate lawyer blogging? Furthermore, is it constitutional for the ABA to do so?
The First Amendment of the United States Constitution states:
Bates v. State Bar of Arizona [1] is the seminal case with respect to attorney advertising and the First Amendment. In Bates, the attorneys of a legal clinic placed an advertisement in the local newspaper. This ad stated that the clinic was offering “legal services at very reasonable fees.” The United State Supreme Court ultimately held that truthful advertising of routine legal services could not be constitutionally banned as a matter of law. The Court addressed six government interests that are protected in banning attorney advertising:
1. The adverse effect on professionalism
2. The inherently misleading nature of attorney advertising
3. The adverse effect on the administration of justice
4. The undesirable economic effects of advertising
5. The adverse effect on advertising on the quality of service
6. The difficulties of enforcement
In weighing these interests against the interest of the attorney, the Court held that interests of the attorney’s rights under the Free Speech clause of the First Amendment outweighed the government’s interests. With respect to blogging, before addressing further United States Supreme Court jurisprudence, we must discuss whether these same interests are at stake for the government with respect to blogging.
1. The adverse effect on professionalism
Blogs are different than other mediums, as they reach a wide range of people and can be as permanent or temporary as the blogger wishes. A person can create a blog various ways, ranging from purchasing a domain name to using a free service such as blogger.com. Furthermore, the possibilities for the blog’s design and content are endless, as long as the user follows the terms of the user agreement. I believe that professionalism is a genuine concern in the “blogosphere.” I will continue to address this issue throughout the blog, but it is relevant that a blog is a different medium than a newspaper, online website, or even a magazine advertisement. The customizability of blogs makes the potential for a lawyer to display a lack of professionalism on a blog that would not fit in any other medium. A lawyer can use colorful font, background images, and fun graphics on a blog, just as a lawyer website. However, the difference is that a blog can be updated as much or as little as the lawyer wishes. Furthermore, the ‘comment’ feature on blogs (which can be turned on and off and customized upon the user’s request) makes the blog akin to a live chat. The concerns mentioned in Bates, therefore, are becoming realized in the lawyer-blog setting.
2. The inherently misleading nature of attorney advertising
Blogs have the ability to be misleading in the same way that attorney websites have the ability to be misleading. There are never-ending possibilities on how a blog could potentially be misleading, but the main concern is that any person can make a blog. Furthermore, any person can claim to be a lawyer and give advice to people who may be desperate to receive help. This is also a serious issue in the context of blog comments. In the current age, a lawyer blogger may write a blog post, and receive comments from potential clients. If the lawyer blogger does not have the appropriate warnings on their site (an example of this is in this post ), a potential client may think that they have received legal advice, and may rely on such legal advice. (triggering Model Rule 1.18 ). Another possibility is that a lawyer may indicate that he specializes in a particular area, triggering Model Rule 7.4. In sum, this concern is one that continues to be prevalent in the context of blogging, and I would suggest that new rules need to be created to address it.
3. The adverse effect on the administration of justice
These issues will be addressed later in greater detail, but fear became realized for Kristine Peshek and Sean Conway , both of whom were reprimanded for blogging.
4. The undesirable economic effects of advertising
As discussed above, blogs are easily created and updated. Unlike an attorney website, newspaper ad, and the like, an attorney is not even required to pay to blog; blogging can be done for free. Therefore, the use of blogs as advertising have, arguably, saturated the advertising world. One could argue that there is no longer any competition for attorneys due to the fact that attorney advertising in the form of lawyer blogging is readily available.
5. The adverse effect on advertising on the quality of service
Due to their malleable nature of blogs, there is potential for lawyers to provide a lower quality service than if they took the time to place an ad in a newspaper. No thought is required to post a blog. With several clicks, an attorney could create an attorney-client relationship and complete that relationship once they have provided the advice. This advice may not be as researched as it might have been had the attorney met with the client in person. However, I would argue that attorney blogging provides a higher level of service due to the fact that the client has the ability to more adequately research their attorney before contacting them. Therefore, the client can become choosier. In turn, attorneys feel increasingly exposed over the internet; therefore, there is more pressure to provide quality service.
6. The difficulties of enforcement
This is one concern that is lower with lawyer blogging than with other areas of advertising. With blogging, the House of Delegates (ABA) could create a staff to regulate lawyer blogging. The only concern is that the lawyer would make the blog private to some but not others. However, if this is the case, it is unlikely that the attorney is using the blog as advertising anyways; in which case regulation may neither be required nor constitutional. The issue of the regulation of blogs which are not advertising will be addressed later. Needless to say, public blogs may be easily regulated due to their extremely public nature.
As this post demonstrates, overall, the concerns addressed in Bates (and subsequently dismissed in favor of attorney protection under the First Amendment), are still prevalent. The issue, therefore, is whether blogging deserves the same protection that the Supreme Court has determined that is required under Bates. I would suggest that a lower level of protection is required for lawyer blogs that clearly fit in the description of advertising. This issue will be addressed in turn.
[1] 433 U.S. 350 (1977).
The First Amendment of the United States Constitution states:
“Congress shall make no law. . .abridging the freedom of speech, or of the press. . .”The Court has held that the First Amendment applies to the states through the Fourteenth Amendment.
Bates v. State Bar of Arizona [1] is the seminal case with respect to attorney advertising and the First Amendment. In Bates, the attorneys of a legal clinic placed an advertisement in the local newspaper. This ad stated that the clinic was offering “legal services at very reasonable fees.” The United State Supreme Court ultimately held that truthful advertising of routine legal services could not be constitutionally banned as a matter of law. The Court addressed six government interests that are protected in banning attorney advertising:
1. The adverse effect on professionalism
2. The inherently misleading nature of attorney advertising
3. The adverse effect on the administration of justice
4. The undesirable economic effects of advertising
5. The adverse effect on advertising on the quality of service
6. The difficulties of enforcement
In weighing these interests against the interest of the attorney, the Court held that interests of the attorney’s rights under the Free Speech clause of the First Amendment outweighed the government’s interests. With respect to blogging, before addressing further United States Supreme Court jurisprudence, we must discuss whether these same interests are at stake for the government with respect to blogging.
1. The adverse effect on professionalism
Blogs are different than other mediums, as they reach a wide range of people and can be as permanent or temporary as the blogger wishes. A person can create a blog various ways, ranging from purchasing a domain name to using a free service such as blogger.com. Furthermore, the possibilities for the blog’s design and content are endless, as long as the user follows the terms of the user agreement. I believe that professionalism is a genuine concern in the “blogosphere.” I will continue to address this issue throughout the blog, but it is relevant that a blog is a different medium than a newspaper, online website, or even a magazine advertisement. The customizability of blogs makes the potential for a lawyer to display a lack of professionalism on a blog that would not fit in any other medium. A lawyer can use colorful font, background images, and fun graphics on a blog, just as a lawyer website. However, the difference is that a blog can be updated as much or as little as the lawyer wishes. Furthermore, the ‘comment’ feature on blogs (which can be turned on and off and customized upon the user’s request) makes the blog akin to a live chat. The concerns mentioned in Bates, therefore, are becoming realized in the lawyer-blog setting.
2. The inherently misleading nature of attorney advertising
Blogs have the ability to be misleading in the same way that attorney websites have the ability to be misleading. There are never-ending possibilities on how a blog could potentially be misleading, but the main concern is that any person can make a blog. Furthermore, any person can claim to be a lawyer and give advice to people who may be desperate to receive help. This is also a serious issue in the context of blog comments. In the current age, a lawyer blogger may write a blog post, and receive comments from potential clients. If the lawyer blogger does not have the appropriate warnings on their site (an example of this is in this post ), a potential client may think that they have received legal advice, and may rely on such legal advice. (triggering Model Rule 1.18 ). Another possibility is that a lawyer may indicate that he specializes in a particular area, triggering Model Rule 7.4. In sum, this concern is one that continues to be prevalent in the context of blogging, and I would suggest that new rules need to be created to address it.
3. The adverse effect on the administration of justice
These issues will be addressed later in greater detail, but fear became realized for Kristine Peshek and Sean Conway , both of whom were reprimanded for blogging.
4. The undesirable economic effects of advertising
As discussed above, blogs are easily created and updated. Unlike an attorney website, newspaper ad, and the like, an attorney is not even required to pay to blog; blogging can be done for free. Therefore, the use of blogs as advertising have, arguably, saturated the advertising world. One could argue that there is no longer any competition for attorneys due to the fact that attorney advertising in the form of lawyer blogging is readily available.
5. The adverse effect on advertising on the quality of service
Due to their malleable nature of blogs, there is potential for lawyers to provide a lower quality service than if they took the time to place an ad in a newspaper. No thought is required to post a blog. With several clicks, an attorney could create an attorney-client relationship and complete that relationship once they have provided the advice. This advice may not be as researched as it might have been had the attorney met with the client in person. However, I would argue that attorney blogging provides a higher level of service due to the fact that the client has the ability to more adequately research their attorney before contacting them. Therefore, the client can become choosier. In turn, attorneys feel increasingly exposed over the internet; therefore, there is more pressure to provide quality service.
6. The difficulties of enforcement
This is one concern that is lower with lawyer blogging than with other areas of advertising. With blogging, the House of Delegates (ABA) could create a staff to regulate lawyer blogging. The only concern is that the lawyer would make the blog private to some but not others. However, if this is the case, it is unlikely that the attorney is using the blog as advertising anyways; in which case regulation may neither be required nor constitutional. The issue of the regulation of blogs which are not advertising will be addressed later. Needless to say, public blogs may be easily regulated due to their extremely public nature.
As this post demonstrates, overall, the concerns addressed in Bates (and subsequently dismissed in favor of attorney protection under the First Amendment), are still prevalent. The issue, therefore, is whether blogging deserves the same protection that the Supreme Court has determined that is required under Bates. I would suggest that a lower level of protection is required for lawyer blogs that clearly fit in the description of advertising. This issue will be addressed in turn.
[1] 433 U.S. 350 (1977).
Friday, February 4, 2011
Non-advertising lawyer blogs "falling through the cracks" of attorney regulation?
Random House Dictionary defines a blog as “a web site containing the writer's or group of writers' own experiences, observations, opinions, etc., and often having images and links to other Web sites.” This definition, while not incorrect, may not completely encompass what a blog truly is. Many lawyers now use blogs to not only share their experiences with their readers, but also to market themselves. The usage of blogs and the internet in this manner has sparked concern from the ABA regarding the ethical implications surrounding
One of the questions posed by the September Paper released by the ABA Commission on Ethics 20/20 (discussed here was the following:
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?
If a blog is unquestionably advertising, then the issue becomes whether the ABA can constitutionally regulate lawyer blogging under the First Amendment. If a blog is not advertising, then 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.
The first underlying issue of this question is how the ABA should categorize blogs. Are they advertising? Or are blogs something else? Should blogs that are not advertising not be treated as such? Or should all blogs be categorized as advertising irrespective of whether there is a proposed commercial transaction inherent in the blog?
Thus, the first question we must ask to adequately answer the ABA’s question is whether blogs are advertising, is whether the ABA contemplated mediums such as blogs when it wrote the most current version of the Model Rules of Professional Conduct.
Model Rule 7.2 is the main rule that addresses the issue of advertising. This rule states:
Prior to 2002, 7.2(a) said the following:
The ABA House of Delegates Explanatory report indicated that the changes were required to “obviate the necessity of changing the rule to accommodate the next new public-communication technology.” Therefore, there is a strong argument that the 2002 amendment to the rules was intended to broaden the definition of advertising from just print media to other source such as the internet.
Comment 1 to Model Rule 7.2 indicates:
The best way to answer this question is to examine some lawyer blogs. (sometimes called “blawgs”).
Michigan Auto Lawyers Blog, boasts, on the headline that it provides “News, tips, and help for auto accident victims and drivers in Michigan.” This presents several issues outside of the context of advertising (such as Model Rule 1.18, duty to prospective clients). For now, however, the discussion will only reach the confines of advertising. In this headline, the word “help” can be easily understood to mean that this lawyer is on the quest for clients. To help someone implies that a service will be done; and to provide legal services for someone, even if it is for no fee, would still make that person your client.
IP Litigation Blog focuses on current issues in Intellectual Property law. From the outset, this blog appears to be geared towards the legal community, as it discusses the nuts and bolts of intellectual property. This blog, thus, may potentially fall into the realm of the blogging-to-network crowd. The “about” section focuses on Mr. Mann’s legal career, and accomplishments, and does not provide any specific language that is geared towards seeking potential clients.
However, the “contact” section struck me. Here, the blog provides a mailing address, telephone number, and email address. It also provides a fill-in-form where a person can send an email directly through the blog. A disclaimer above the fill-in-form contains the following:
The Prime Time Crime Review is a blog written by a Federal Sex Crimes Prosecutor. The title says “An insider’s glimpse into the truth, the whole truth, and other stuff.” This blog focuses on the television show “Law and Order: Special Victim’s Unit,” and whether the television show accurately portays the state of the law. Ms. Leotta “grades” each episode for its accuracy. The interesting aspect of this blog is that, to find out how to contact Ms. Leotta, it is necessary to click on the top header, which leads the reader to her website. At the website, a person can purchase the book that Ms. Leotta has written. Because she is a federal prosecutor, she does not appear to be soliciting clients; rather, she appears to be soliciting readers for her book.
As I have shown with a short review of the above blogs, the line between defining blogs as advertising and as some other medium is very blurry. By the review of the history, comments, and the rule itself, it is clear to me that the ABA intended to, at a minimum, include lawyer blogs who actively seek clients as advertising. By concern is that those lawyer blogs which do not actively solicit clients might be unnecessarily regulated by the ABA by “falling through the cracks” of the rule. This regulation will result in an unconstitutional chilling of lawyer speech. This is an important and controversial question for lawyers, especially those (such as myself) who are just entering the legal community.
One of the questions posed by the September Paper released by the ABA Commission on Ethics 20/20 (discussed here was the following:
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?
If a blog is unquestionably advertising, then the issue becomes whether the ABA can constitutionally regulate lawyer blogging under the First Amendment. If a blog is not advertising, then 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.
The first underlying issue of this question is how the ABA should categorize blogs. Are they advertising? Or are blogs something else? Should blogs that are not advertising not be treated as such? Or should all blogs be categorized as advertising irrespective of whether there is a proposed commercial transaction inherent in the blog?
Thus, the first question we must ask to adequately answer the ABA’s question is whether blogs are advertising, is whether the ABA contemplated mediums such as blogs when it wrote the most current version of the Model Rules of Professional Conduct.
Model Rule 7.2 is the main rule that addresses the issue of advertising. This rule states:
(a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media. (emphasis added).
(b) A lawyer shall not give anything of value to a person for recommending the lawyer's services except that a lawyer may
• (1) pay the reasonable costs of advertisements or communications permitted by this Rule; (2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service. A qualified lawyer referral service is a lawyer referral service that has been approved by an appropriate regulatory authority; (3) pay for a law practice in accordance with Rule 1.17; and (4) refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if
(i) the reciprocal referral agreement is not exclusive, and (ii) the client is informed of the existence and nature of the agreement.
(c) Any communication made pursuant to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content.
Prior to 2002, 7.2(a) said the following:
(a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor advertising, radio or television, or through written or recorded communication.
The ABA House of Delegates Explanatory report indicated that the changes were required to “obviate the necessity of changing the rule to accommodate the next new public-communication technology.” Therefore, there is a strong argument that the 2002 amendment to the rules was intended to broaden the definition of advertising from just print media to other source such as the internet.
Comment 1 to Model Rule 7.2 indicates:
[A]dvertising involves an active quest for clients, contrary to the tradition that a lawyer should not seek clientele.Therefore, piecing all of these elements together, we can understand the ABA’s definition of advertising to include electronic communications (including public media) that involve the active quest for clients. This definition resolves the issue that certainly some blogs should be classified as advertising. However, can the ABA really assume that just because the lawyer has a blog, and allows the blog to be public that the lawyer is engaged in the “active quest for clients”?
The best way to answer this question is to examine some lawyer blogs. (sometimes called “blawgs”).
Michigan Auto Lawyers Blog, boasts, on the headline that it provides “News, tips, and help for auto accident victims and drivers in Michigan.” This presents several issues outside of the context of advertising (such as Model Rule 1.18, duty to prospective clients). For now, however, the discussion will only reach the confines of advertising. In this headline, the word “help” can be easily understood to mean that this lawyer is on the quest for clients. To help someone implies that a service will be done; and to provide legal services for someone, even if it is for no fee, would still make that person your client.
IP Litigation Blog focuses on current issues in Intellectual Property law. From the outset, this blog appears to be geared towards the legal community, as it discusses the nuts and bolts of intellectual property. This blog, thus, may potentially fall into the realm of the blogging-to-network crowd. The “about” section focuses on Mr. Mann’s legal career, and accomplishments, and does not provide any specific language that is geared towards seeking potential clients.
However, the “contact” section struck me. Here, the blog provides a mailing address, telephone number, and email address. It also provides a fill-in-form where a person can send an email directly through the blog. A disclaimer above the fill-in-form contains the following:
All inquiries will not be treated as confidential or privileged, and any email communications may be disclosed to other persons without regard to confidentiality considerations. If you must send us confidential or proprietary information please clearly indicate so and we will make every effort to treat it that way.Doesn’t this suggest that, if you are a person who wants to contact Mr. Mann regarding an intellectual property issue, he will assist you in keeping your information confidential under Model Rule 1.6 (Client Confidences)? This blog, therefore, could be seen as an all-encompassing, throw-it-at-the-wall-and-see-what-sticks blog.
The Prime Time Crime Review is a blog written by a Federal Sex Crimes Prosecutor. The title says “An insider’s glimpse into the truth, the whole truth, and other stuff.” This blog focuses on the television show “Law and Order: Special Victim’s Unit,” and whether the television show accurately portays the state of the law. Ms. Leotta “grades” each episode for its accuracy. The interesting aspect of this blog is that, to find out how to contact Ms. Leotta, it is necessary to click on the top header, which leads the reader to her website. At the website, a person can purchase the book that Ms. Leotta has written. Because she is a federal prosecutor, she does not appear to be soliciting clients; rather, she appears to be soliciting readers for her book.
As I have shown with a short review of the above blogs, the line between defining blogs as advertising and as some other medium is very blurry. By the review of the history, comments, and the rule itself, it is clear to me that the ABA intended to, at a minimum, include lawyer blogs who actively seek clients as advertising. By concern is that those lawyer blogs which do not actively solicit clients might be unnecessarily regulated by the ABA by “falling through the cracks” of the rule. This regulation will result in an unconstitutional chilling of lawyer speech. This is an important and controversial question for lawyers, especially those (such as myself) who are just entering the legal community.
Subscribe to:
Comments (Atom)