March 31, 2004

Responsible Blawging

by Nick Morgan

I've considered anonymity throughout my blogging history, but I've ultimately decided against it because writing in my own name forces me to take due responsibility for my public remarks. Plus, in the unlikely event that I some day produce a truly original thought, credit would be nice. Anonymous or not, it's long been my view that blogging about matters (involving other peope) that are not explicitly public is a very bad idea. I'm always baffled by bloggers who underestimate the potential publicity of their online writing, and end up with some explaining to do to the unwitting subjects of their writing, like friends or coworkers. From Anonymous Lawyer, it looks like this may become an issue for associates and future lawyers who blog non-anonymously:

    Uh oh. One of the recruiting coordinators knocked on my door this morning. Apparently she had lunch over the weekend with one of her colleagues, and heard a story about an associate at another firm who had "some sort of online journal -- something apparently called a weblog," and was writing stuff about the firm, and her colleagues, and when they discovered this it became a big deal, because of what was up there, and they ended up reprimanding the associate and having her make the blog vanish immediately. So having heard this story, first thing this morning the recruiter starting googling all of our summer hires to see if anything would turn up. And, sure enough, we've got one with a weblog of his own. It's actually not a bad read at all, and doesn't say anything about us... but recruiting is concerned. I'm certainly in no position to make a big deal about it, since I've got this little side project of my own... but now I feel like since this summer hire is someone I really championed, and now I know about the weblog, if anything bad comes of it, it's on my shoulders. Almost tempted to shoot him an e-mail just to let him know someone's watching. I mean, I have no problem at all with it if it doesn't mention the firm, or say anything damaging about anyone here or anything we do. But I'm not sure everyone else is as "enlightened." Words for all to see make lawyers uneasy. We're used to privileged communications....

(Link from Tech Law Adviser.) In law student and lawyer circles, blogging appears to be relatively common. Unless and until law firms come up with express policies about their employees' blogging, bloggers would be wise to write nothing about their coworkers or their firm's clients without permission. To avoid unpleasant surprises, it might even be wise to make their firms aware that they blog--which I intend to do--just in case.

As to whether law-bloggers should take general legal positions that may be inconsistent with the interests of their employer's clients, I'm not sure what the protocol should be. Any thoughts?

March 31, 2004 09:16 PM | TrackBack
Comments

Hmm. I originally chose my nom de blog to use on a lawyers' bitchin' & moanin' board (though in the event I don't think I ever did anything more than lurk). Kept it for blogging, though it's rare indeed that I post anything more than very tangentially law-related. So, can't help you on that front.

But as for taking on your blog 'legal positions that may be inconsistent with the interests of [your] employer's clients', I don't see a big problem. I mean, I assume you do not intend to post something like, 'EvilCo, which my firm represents in Innocent Sad-Eyed Child Injured by EvilCo Products v. EvilCo Inc., is plainly liable and I've got the secret memos that prove it'? We're talking on a more theoretical plane, right? In that case, the standard disclaimer ('The opinions presented in this post are solely those of the author and not necesarily those of the author's employers etc etc etc') ought to do nicely. I've co-authored a few articles in which we took positions that are rather harder-line than some of our clients like. Don't know whether the disclaimer is what kept them sweet, but they never called to complain. Mind you it's likeliest they never saw the articles. The fellow who heads our office has been quoted in the papers a few times and has sometimes taken a bit of stick from clients for what he said. They didn't take their business elsewhere though, so no harm done.

Posted by: Mrs Tilton at April 1, 2004 03:54 AM

What about the middle ground, in which you blog critically about one of your firm's clients, but not about a matter under litigation? Suppose, just for instance, that I am a summer associate at a firm that represents Halliburton, and I write a post that mocks Halliburton's recent PR campaign. This doesn't violate my responsibility as an employee of the company's legal representative, but it might easily piss off Halliburton (supposing they noticed my lowly blog) to know that they are indirectly paying for the maintenance of a person who makes fun of them. Taking it even further, what if I blog from the firm's computer? I think there's a lot more gray area here than Mrs. Tilton recognizes, and that can't necessarily be brushed away with a simple disclaimer.

Posted by: PG at April 1, 2004 08:31 AM

I think it would be plain stupid to criticize an actual client of one's firm, summer associate or not.

No one has an absolute "right" to express one's opinion about matters that affect their business without some potential business-related consequences (like getting fired). If someone wants to write with absolute and total freedom on a subject, they should become a journalist, or quit the job with the firm, become a solo practitioner, and advocate their position to their heart's desire.

Posted by: UCL at April 1, 2004 10:54 AM

Welcome to the world of big law firm politics:

"No, you can't do what you want to in your spare time, even if you have a constitutional right to do it and your not causing any harm. Rembember, we might make you a non-equity partner in 12 years."

As suggested, start your own firm and blog away.

Posted by: Anthony at April 1, 2004 11:49 AM

Fair points, PG, but my assumption was that when Nick wrote 'general legal positions', 'general' is what he meant. So, let's say Nick has clients who are foreign private issuers listed on a US exchange. Now let's say Nick thinks the requirement that FPIs who don't report in US GAAP provide a reconciliation is a very good idea. And let's say Nick's clients would prefer to be able to skip the reconciliation and just show the IFRS, or whatever godless furrin standard they use. So, should Nick refrain from putting his thoughts on the matter into a blog post? It's up to him, of course, but I don't think it illegitimate to do so. But I do think it makes sense for him to make clear that he's speaking for himself, not for his firm, just as he would if he published something in a journal.

As for your middle ground, I don't think anybody should be criticising a client in a forum in which one is identifiable (whether explicitly or by context) as the client's counsel, or even simply part of a firm that counsels the client. We've all had clients who are rat bastards. And it's fine to complain to a colleague over a beer that EvilCo are rat bastards. It's another matter to point out in a public forum that EvilCo are rat bastards; certainly so, if in doing so you say 'we represent EvilCo' or if it is apparent without your saying so explicitly that you (or others at your firm) do.

As for posting from a firm computer, that's another question altogether (and one that I suspect lots of posters to Greedy Associates think about, or should).

Posted by: Mrs Tilton at April 1, 2004 11:50 AM

Definitely an issue. Big firms will soon have policies or incorporate blogs into their existing policies regulating lawyer speech about cases.

The last paragraph hits home a great point. I often want to highlight the ambiguity in a case I'm working on. And that does not seem right for some reason. It doesn't make sense for me to write a brief saying the law says X or compels X results and then turn around and blog that there's this wonderful grey area in the law.

I struggle with that one.

Posted by: Balasubramani at April 1, 2004 12:13 PM

It isn't about constitutional freedoms or the police state mentality of big firm life. It's about professionalism. As a lawyer, and part of a firm, you are being paid a considerable sum of money to protect the clients represented by that firm.

If one has some moral or political objection to their firm's clients, perhaps they shouldn't have been so quick to line their pockets with the money the firm pays them that comes from, yes, those evil clients.

Posted by: Brian at April 1, 2004 01:48 PM

Brian, wouldn't you agree that probably 99 of 100 lawyers have some kind of political or moral disagreement with at least a few of their clients at some point? With the exception of impact litigation and public interest lawyers, I doubt any lawyer could make a living if she insisted on representing only those clients whose positions she would personally endorse, politically or otherwise.

My concern with "general" legal positions is this: suppose I work for a firm that represents Dell. Would I be out of line to criticize overseas outsourcing of call center service, even if I made no mention of Dell, and even if the firm represented Dell in matters totally unrelated to outsourcing?

Posted by: Nick Morgan at April 1, 2004 02:20 PM

I just feel that if you sign a contract to work with a firm, company, etc. you are bound to follow their policies regarding public comment no matter how oppressive or incongruous they may be.

"Blogging" goes beyond a private conversation between you and your spouse, friend, co-worker, etc. The entire world could possibly see it.

In your example, you would only be "out of line" as far as your employer deemed you to be. I don't see being prohibited from blogging about a client to be a great injustice.

Posted by: Brian at April 1, 2004 03:14 PM

I agree with Brian and am bewildered by Anthony's comments. So far as I can tell, I don't see any biglaw attorneys here actually complaining about any "injustice" or "constitutional violations". (I fail to see any State action but that's another blog post altogether). If you want to work in biglaw, accept the responsibility of complying with company policies if you want the premium salary you're rewarded with. If you don't like such policies, don't work for biglaw.

Posted by: UCL at April 1, 2004 04:15 PM

(Just to point out--the Anthony posted above isn't me. I only say this because I got some email that seemed confused.)

I actually share Nick's concern, and one of the reasons I've not been saying so much recently is a kind of reverse-censorship. A lot of the things I've been wanting to say on my blog recently are probably outside the range of what I should discuss publicly.

The standard I generally hold to is, "Would I say this to the face of the person involved?" In which case, I generally don't see any harm in posting something. On the other hand, I've made clear before that I'm perfectly willing to alter the details of a story that I publish to preserve the anonymity of whoever I'm blogging about, and there's only one case that I've blogged about anyone where I've not asked that person first.

I'm still trying to put together a statement for my summer blogging, since it'll be the first time that I'm writing while I've got clients and work for a firm. Given that I'll be in Japan, and probably have plenty to write about beyond my workplace, I'm not that worried, though.

Posted by: Anthony Rickey at April 1, 2004 04:52 PM

Brian, per my post, we agree about what a blogger should say relating to clients on a blog. I just thought you meant that lawyers shouldn't get paid by clients they disagree with, period. And there's clearly no free speech issue here--it's simple contract law.

Posted by: Nick Morgan at April 1, 2004 05:29 PM

"I just thought you meant that lawyers shouldn't get paid by clients they disagree with, period."

Shouldn't is probably too strong a word, but let's just say it's a bit twenty-something-ish for people to make pithy remarks about their firm's clients but still take the compensation. You know: "Darn these big corporations... I'm tired of 'the man' keeping us down... no where's my $2400 paycheck for my grueling summer associate work of drinking margaritas and playing softball."

;p

Posted by: Brian at April 1, 2004 06:38 PM

I guess the point I was trying to make with my less than humorous but rather succinct post is this:

The rise of blogs, particularly the over abundance of legal blogs, will result in many firms (and not necessarily big law firms) prohibiting partners and employees from blogging about any legal topic, whether from home or the office. The liabilities are too huge for managing partners to ignore.

Example, you blog excessively about some court decision with which you greatly disagree, even though you have no relation to the participants or that court. You get a client who somehow winds up in the exact situation you blogged excessive about. Except your client's legal position is the one opposite from yours. Of course, its not at all uncommon to have to argue a position that you personally think is wrong. But in this instance opposing counsel sees your blog, refers to it in say an appellate brief (giving you full credit of course), and even makes use of some unique but highly persuasive arguments you made in the blog. The court adopts your opponents position (the one you blogged for), giving you full credit as well, and, lo and behold, the fact that your arguments from your blog just cost your client a big case are now in the reporters forever.

Needless to say, the client is not going to be pleased with you, and the managing partner(s) may very well reconsider the question of whether you justify your salary.

That might be an extreme example, but any number of variations of that theme will inevitably start popping up. And as soon as a couple do, many firms will start prohibiting blogging on legal topics by their people.

* Apologies for any confusion resulting from my wonderfully popular name.

Posted by: Anthony 2 at April 1, 2004 09:24 PM

Oh, one other point. Its not smart publicly discussing, whether in blog form or not, any case or client that you have.

Clients expect that their attorneys will keep their details private. Even if the discourse does not involve any actual names, if word gets back to the client that you were discussing a case with someone outside of your representation of them, they will feel that you violated their trust in you.

And watch business shrink as that client tells their friends that you can't keep your mouth shut.

Posted by: Anthony 2 at April 1, 2004 09:30 PM

Oh, one other point. Its not smart publicly discussing, whether in blog form or not, any case or client that you have.

Clients expect that their attorneys will keep their details private. Even if the discourse does not involve any actual names, if word gets back to the client that you were discussing a case with someone outside of your representation of them, they will feel that you violated their trust in you.

And watch business shrink as that client tells their friends that you can't keep your mouth shut.

Posted by: Anthony 2 at April 1, 2004 09:35 PM

Anthony 2 reflects the real world of the practice of law. The client comes first. The client is the attorney's prime focus. While an attorney can argue a position he may not agree with, his effectiveness in doing so might be diminished. This Fall I shall be by the bar 50 years. I take an active interest in my neighborhood and address and challenge from time to time zoning and other decisions that might impact my neighborhood negatively. Assuming I am effective in doing so, a developer might engage me for a project in my community but outside my neighborhood. Yes, I might disagree with this potential client's proposal. But I can still represent him, and perhaps earn a significant fee. If I am successful in representing that client's proposal, the arguments employed by me might then be used against me if I challenge a similar proposal in my neighborhood. Yes, I can always use a good fee. But as a matter of principle I choose not to get into this sort of trap. As a solo practitioner, I do not have to be concerned with the cases being handled by others in a law firm. But if I were in a sizable law firm, I would have to be concerned with the impact of my neighborhood activities upon the firm's clients. These are issues of principle. They are not easily resolved. Welcome to the practice of law.

Posted by: Shag from Brookline at April 2, 2004 06:27 AM

You tell 'em, Shag! Now let's hop on the green line and head over to the Village Fish. :)

Posted by: Brian at April 2, 2004 02:15 PM

Brian,
What is the "catch of the day" from the Muddy River? Is it stored at Town Hall? Arri-verderci-aroma!

Posted by: Shag from Brookline at April 2, 2004 02:23 PM

I'm still not seeing any real-life scenario which should give biglaw attorneys any cause for concern. In particular, I don't see anything about blogging that's any different than a biglaw attorney writing a letter to the editor of a local paper. Now and then such a letter might cause a problem, when the letter-writer loses common sense. But has anyone heard of a "no letter to the editor" policy at any firm, ever?

The specific "nightmare scenario" Anthony 2 gives as an example makes no sense to me either. How is a blog post written by a lawyer on a totally unrelated subject admissible evidence? It's irrelevant, hearsay, and presumably will lack foundation (unless you intend to depose opposing counsel or call him as a witness). I've argued conflicting points of law all the time, from day to day, on different cases. All lawyers do. Are these lawyers briefs and oral arguments in court going to be used to "impeach" them, when they're not even witnesses? It doesn't make practical sense.

Posted by: UCL at April 2, 2004 02:40 PM

I think there is a large distinction between letters to the editor and blogs. Most people never write a letter the editor anytime in their life. The majority of those that do write such letters write less than a handful. And then theres a very small percentage who write lots and lots of such letters.

Blogs are much different. More people blog than write letters to the editor. Those who blog usually write extensively, whereas a letter to the editor is typically quite brief. And blogs are in a much easier to access place, particularly with regards to archives, than is a letter to the editor. Furthermore, blogs can be accessed anywhere one can access the internet; a letter to the editor is usually limited to a particular geographic area.

A legal blog will often contain thorough arguments for or against a given position, and will often contain citations. They will often comment on specific cases that are either currently pending or that have just reached a final outcome.

A no letters to the editor policy makes little sense for a law firm, as most lawyers don't write them anyways, and those who do probably don't write too many (or at least don't get too many published.) Its the type of situation where if a problem appeared on the horizon, it could be dealt with by a short talk with the offending attorney. But for the most part, you won't see a lawyer write a letter to the editor about a legal topic, except maybe with regards to a political issue.

But blogs, being what they are, pose a much greater threat. Anybody in the office could be blogging about anything. Lawyers in particular like to discuss legal issues in their blogs, and there are a whole bunch of those out there.

As for the scenario I posted, its certainly not beyond the realm of possibility. Lets say the 4th Circuit comes down with a decision that you think is abhorrent. You rip it to shreds in your blog, citing specific portions from the case, then citing cases from the US Supreme Court, the 3rd Circuit, the California Supreme Court and the Ohio Court of Appeals. And you put together a really good argument against that 4th Circuit decision.

Six months later you represent the appellee in a case before a state level appellate court in the 4th Circuit. (Maybe you in particular would not be in appellate court, but this is a general situation I am describing.) Amazingly, that 4th Circuit decision is just the thing you need to win the appeal, so long as the state court follows it. But opposing counsel, being internet savvy, googles you prior to writing her brief, and comes upon your blog. She find your posts criticizing the 4th Circuit decision, and uses your arguments and citations in her brief, and even cites your post in your blog. She goes on to win the appeal and the court adopts her brief primarily because of the arguments you initially posted. And the justices find a little humor in the fact that these were your own arguments posted on the web for all to see, and include a nice footnote about it when the opinion goes into the state reporters.

The scenario has nothing to do with admissible evidence, foundations, etc,... Your blog becomes a persuarive citation. Its an unlikely scenario, but it could happen, or just as many similiar instances where your blogging about a legal issue could come back to bite you and your client.

Whether its likely or not isn't the issue. Managing partners tend to have a strong aversion to upsetting clients. If a few problem instances pop up, you will see many firms prohibit their people from blogging about legal issues. In fact, I would probably do so if I were a managing partner. Because it is a decision that would tend to minimize damage but that has little to no actual cost to the firm.

Anyways, as I pointed out earlier, a lawyer shouldn't be discussing any current or recent clients or cases with anybody outside of that necessary for the representation. Not even with your spouse. Theres too much risk of upsetting a client or actually causing damage to a client to do that.

Doesn't really matter to me though. I don't blog and I don't work in a big law firm anymore. Just offering some opinions.

Posted by: Anthony 2 at April 2, 2004 05:25 PM

"Your blog becomes a persuarive citation."

The likelihood of a court bothering to cite one's personal blog as "persuasive authority" (please; I know it may have happened before but... please) is negligible, to put it kindly. And it's still no different than the likelihood of writing a law review article "coming back to haunt you." Again I ask: are you aware of bans by law firms on publishing law reviews? Or is that somehow distinguishable too?

PS: Westlaw confirms that not one published case in the United States has ever cited to a blog.

Posted by: UCL at April 2, 2004 05:53 PM

See Batzel v. Smith, 351 F.3d 904, 906 n.3 (9th Cir. 2003) ("To mention a few popular and respected legal blogs, see, for example, How Appealing, www.appellateblog.blogspot.com, SCOTUSBlog, www.goldsteinhowe.com/blog/index.cfm, The Volokh Conspiracy, volokh.com and Lessig Blog, www.lessig.org/blog/. The development argument is likely to hold true in other industries as well, including politics, www.instapundit.com, and software architecture, www.corfield.org/blog.")

Posted by: Dave at April 2, 2004 06:31 PM

Pardon my not being clear.

Westlaw confirms that not one published case in the United States has ever cited to a blog AS A PERSUASIVE AUTHORITY.

Posted by: UCL at April 3, 2004 12:12 PM

Here's a real world example. A couple weeks ago I get an early morning call from opposing counsel at the AG. He was getting flack from his coworkers because a local newsletter had taken a 'graf from my blog, properly mocking the state's misconduct, but also could be misconstrued as saying the other side had acted unethicly. My blog post was more whiney than i would have used if i'd known i'd be quoted. I usually assume no one reads my blog (http://ballots.blogspot.com is the blog in question.) Overall, I think it was a good thing... I don't usually win my cases, but my lawsuits bring publicity to misconduct by state actors. Blogging helps me run a low overhead operation, speaking truth to power. It's not a bad thing, but it's a reminder to maintain a sense of professionalism before going into full on rant mode.

Posted by: arbitraryaardvark at April 7, 2004 03:50 PM
Sitting in Review
Armen (e-mail) #
PG (e-mail) #
Dave (e-mail) #
Craig (e-mail) #
About Us
Senior Status
Chris Geidner #
Jeremy Blachman #
Nick Morgan #
Wings & Vodka #
Recent Opinions
Symposia
Persuasive Authority
De Novo Reporter
Research


Powered by
Movable Type 3.21