Facebook isn't just for college kids wasting time

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

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

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

The right to be forgotten?

Do Americans really have a right to be forgotten?

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

Who needs Westlaw when you've got lawyer blogs?

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

Lawyer blogs: The go-to news source

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

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

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

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

First, let’s examine some blogs.

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

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

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

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

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

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

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

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

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

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


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

Can blogging really land you a job?

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

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

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

The intersection of the Westboro protestors and lawyer blogging

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

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

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

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

And this is at the core of the First Amendment:

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

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

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

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

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

Lawyer blogging: Current-day soapbox?

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

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

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

1. Public forums
2. News sources

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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