Blogging — it’s been around for years now, but lawyers are only recently starting to warm up to the idea of posting about legal issues and case-related information online. Not surprisingly, as more lawyers begin to blog and share information online, issues regarding the ethics of lawyers doing so have begun to crop up.
So, for example, last month I discussed New York State Bar Ethics Opinion 967, where the Ethics Committee concluded that New York lawyer advertising rules are not triggered when lawyers blog about legal issues with the primary goal of providing educational content, rather than encouraging potential clients to retain the lawyer’s services.
I also discussed a similar issue earlier this year when I wrote about a Virginia decision, Horace Frazier Hunter v. Record No. 121472. In that case, the Virginia Supreme Court held that not only can Virginia lawyers ethically blog about their cases, they can even list the names of their clients when doing so, as long as their blog includes an appropriate disclaimer. Importantly, the court held that Hunter’s posts were protected by the First Amendment, while also concluding that the bar could regulate the speech and require disclaimers, since the speech had the potential to be misleading.
Into the fray comes a new California case which also addressed free speech issues and considered whether a trial court’s order requiring an attorney to remove pages from her law firm’s website was unconstitutional. At issue were postings regarding her prior court successes against the defendants in the case at hand.
The defendants, Volkswagen Motor Company and Ford Motor Company, moved for an order requiring her to remove the postings, alleging that the “plainly provocative and prejudicial information should not intentionally be prominently displayed on the Internet, by the parties or their counsel in this case during trial. That will obviously prejudice the jury process during the trial and deliberations in this case, if it is encountered by a juror.”
The trial court agreed and ordered plaintiff’s counsel to remove the pages touting her victories from her website. The Second District Court of Appeal of California disagreed, holding that the trial court’s order constituted an unlawful prior restraint on her free speech rights:
“The trial court properly admonished the jurors not to Google the attorneys and also instructed them not to conduct independent research. We accept that jurors will obey such admonitions. (NBC Subsidiary, supra, 20 Cal.4th at pp. 1223-1224.) It is a belief necessary to maintain some balance with the greater mandate that speech shall be free and unfettered. If a juror ignored these admonitions, the court had tools at its disposal to address the issue. It did not, however, have authority to impose, as a prophylactic measure, an order requiring Farrise to remove pages from her law firm website to ensure they would be inaccessible to a disobedient juror.”
So, it would seem that as blogging and online publishing become more commonplace, decisions limiting lawyers’ use of online publishing tools are beginning to fade away. Instead, we are increasingly seeing the courts issue measured, well thought out decisions based on analysis of the core content being shared rather than knee jerk reactions to emerging technology intended to dissuade lawyers from utilizing Web-based publishing. It’s encouraging to see this more liberal trend and gives me high hopes for the future of our profession.
Nicole Black is a Rochester, New York attorney and Director of Business Development and Community Relations at MyCase, an intuitive cloud-based law practice management platform for the modern law firm. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at [email protected].