Blogging and Legal Ethics
Blogging lawyers are not like ordinary bloggers. Most bloggers don’t have to worry about the issue of conflicts of interests and client confidentiality. Lawyers, on the other hand, have to worry about legal ethics. Since I started blogging more than three years go, it’s been an issue that I’ve always had to keep in the back of my mind every time I even think about a blog post. With the plethora of blogging lawyers, I am surprised that I haven’t seen much discussion on the topic. (If there has been, please point me to it!)
I blog primarily in the area of privacy law. Ideally, I would want my blog to be a complete and up-to-date resource on what’s happening in privacy law but client loyalty has meant that there are some significant gaps in what I can write. Sometimes a notable story hits the media which I’d love to report on my blog, but there’s always a possibility that the parties involved may be a client. In my case, I work for a firm of over two hundred lawyers in five offices. We have a vast number of clients, many of which are multinationals thanks to Nova Scotia’s cross-border friendly Companies Act. They may not be a current client and I may not have any first hand knowledge of the situation, but the problem of deemed knowledge and client loyalty mean that I have to hesitate before writing about it. If the minute book of the company or any of its affiliates is on a shelf in our corporate services department, I can’t say a peep.
The legal blogosphere would benefit tremendously, I think, from a discussion about client confidentiality and the blogging lawyer. My practice may be bordering on the paranoid side, which usually involves the following practices:
- If there’s any possibility that any of the parties involved are or were a client of your firm, run a conflict search and do not post anything.
- If any of the parties involves is a client or former client, don’t write anything unless you have the client’s permission.
- If you have any “inside knowledge” of the event, don’t write anything unless you have the client’s permission.
Is this taking it too far? Not far enough? Conflicts and client confidentiality may be one reason that is holding back lawyers from blogging. A consensus on best practices would benefit us all.
Please feel free to comment on this post with your thoughts on the issue.
Well I was trained that if you say something publicly, it shouldn’t be anything that would embarrass your clients, your employer and your self.
Plus the Rules of Professional Conduct apply just as much to bloggers as to anyone in the diurnal world.
Ontario says:
Communication with the Public
6.06 (1) Provided that there is no infringement of the lawyer’s obligations to the client, the profession, the courts, or the administration of justice, a lawyer may communicate information to the media and may make public appearances and statements.
Commentary
Lawyers in their public appearances and public statements should conduct themselves in the same manner as with their clients, their fellow licensees, and tribunals. Dealings with the media are simply an extension of the lawyer’s conduct in a professional capacity. The mere fact that a lawyer’s appearance is outside of a courtroom, a tribunal, or the lawyer’s office does not excuse conduct that would otherwise be considered improper.
A lawyer’s duty to the client demands that, before making a public statement concerning the client’s affairs, the lawyer must first be satisfied that any communication is in the best interests of the client and within the scope of the retainer.
Public communications about a client’s affairs should not be used for the purpose of publicizing the lawyer and should be free from any suggestion that the lawyer’s real purpose is self-promotion or self-aggrandizement.
Given the variety of cases that can arise in the legal system, particularly in civil, criminal, and administrative proceedings, it is impossible to set down guidelines that would anticipate every possible circumstance. Circumstances will arise where the lawyer should have no contact with the media and other cases where the lawyer is under a specific duty to contact the media to properly serve the client – the latter situation will arise more often in the context of administrative boards and tribunals where a particular tribunal is an instrument of government policy and hence is susceptible to public opinion.
A lawyer is often involved in a non-legal setting where contact is made with the media about publicizing such things as fund-raising, expansion of hospitals or universities, programs of public institutions or political organizations, or in acting as a spokesperson for organizations that, in turn, represent particular racial, religious, or other special interest groups. This is a well-established and completely proper role for the lawyer to play in view of the obvious contribution it makes to the community.
A lawyer is often called upon to comment publicly on the effectiveness of existing statutory or legal remedies, on the effect of particular legislation or decided cases, or to offer an opinion about cases that have been instituted or are about to be instituted. This, too, is an important role the lawyer can play to assist the public in understanding legal issues.
David, I think this cuts both ways. Perhaps not in the area of privacy law as you say, but there are situations where publishing power and being able to highlight a client’s business can be quite valuable; and may be poised to be very valuable in the near future.
The idea that everyone can be a publisher, including lawyers, means that endorsement can come from anywhere. Documenting business relationships could add a spot of credibility when companies are getting going, and a lawyers public blogging defense – in the court of public opinion – may be worth as much as in courtroom. Lawyers can advocate within the legal realm, and then be just as effective in advocating on the web. The same way we see a lawyer’s face & voice on CNN appearing in a client’s place.
If things continue to get more transparent, and public opinion continues to be gauged by blogger responses, do blogging lawyers become an asset worth retaining?
I write on franchise law and fraud, but I rarely talk about any of my cases, unless to comment on a published judgment, or link to an interview I have done for TV, Radio or a Business Magazine.
You don’t want to end up looking like you are trying the case in public on your own blog.
I believe that you can be advocate for general principles without talking about your own cases.