Beware of what you blawg: the case of the Bench, the Barrister, the Bar, and the Blawg.

This is my most recent print article, which has just been published in the Fall 2009 issue of “The Defender”, the magazine of the Florida Association of Criminal Defense Lawyers.  Links to the endnotes in the print article – as well as a few others – are hyperlinked here for your convenience.

The days of the yellow pages are fading off into the past. Attorney websites appeared several years ago, and are critical to marketing one’s criminal defense practice. Now, websites are more often than not accompanied by a blog. Now, in additional to marketing, an attorney can be an instant author, observer, commentator, critic, cynic, or self-promoting huckster.

Enter the legal blog, or “blawg.” Criminal defense attorneys are using blawgs for commentary and case law analysis, and also for promoting their firm by tracking their results in real time on the internet.

In this article, I will point out some ethics rules that may impact what an attorney writes in a blawg, and offer some rules to consider when using a blawg for advertising. I will also show you how going over the line can get you in trouble with the Bar. After all, a blawg (and the Bar, too, for that matter) is like the ocean; you can play in it and enjoy it, and get a lot of use out of it, but the moment you lose respect for it, it can hurt you.

The basics of blawgging

A “blog” is defined as “a Web site that contains an online personal journal with reflections, comments, and often hyperlinks provided by the writer ; also: the contents of such a site.” 1  “Blog” is a contraction of the word “weblog.” 2 

Realistically, anyone who does not know what a blog is, or has not heard on referenced in the media, is simply out of touch with current culture and technology. No offense intended to your dinosaurs, of course.

A “blawg” is portmanteau of the word “blog” and “law.” Blawgging is a recognized form of communication in the legal world. Don’t think so? Go to http://www.abajournal.com/blawgs for the American Bar Association’s list of a over 2500 legal blawgs.

As you will see herein, attorneys’ blawgs will always be subject to the Bar’s rules – both professionally and personally. Not just in court, not just in written pleadings or correspondence, but all the time – including cyberspace. And while we are pondering blawgs specifically, let’s not forget about what you are “statusing” on Facebook, tweeting about on Twitter, chatting about in IMs (instant messages) and chatrooms, e-mails, SMS and text messages, etc. All of that is being read by someone, and potentially forwarded to others – with your name on it.

Interestingly, the Florida Bar has no direct rule governing the use of blawgs by attorneys. However, there are several Rules Regulating the Florida Bar that are absolutely applicable to blawgging, a working knowledge of which could help the wary “avoid any unnecessary imperial entanglements.” (Obi-wan Kenobi during the Cantina scene, Star Wars, Episode IV, “A New Hope” (1977)).

Bar rules to consider when blawgging

  • General misconduct “catch-all” rules

Let’s start with the biggies – the “catch-all” misconduct rules. Seems that anything you may blawg about, that is taken as an affront by someone, could be alleged as violations of several Bar rules, and potentially subjecting you to discipline.

First and foremost, every attorney should know that scrutiny of their conduct is not limited to acts or comments made in the course of acting as an attorney. Rule 3-4.3 of the Bar’s “Standards of Conduct” (found in Chapter 3 of the Rules) states (emphasis mine):

The standards of professional conduct to be observed by members of the bar are not limited to the observance of rules and avoidance of prohibited acts, and the enumeration herein of certain categories of misconduct as constituting grounds for discipline shall not be deemed to be all-inclusive nor shall the failure to specify any particular act of misconduct be construed as tolerance thereof. The commission by a lawyer of any act that is unlawful or contrary to honesty and justice, whether the act is committed in the course of the attorney’s relations as an attorney or otherwise, whether committed within or outside the state of Florida, and whether or not the act is a felony or misdemeanor, may constitute a cause for discipline.

This is means that everything you do, every hour of the day, may be subject to discipline – even if you are not acting in the capacity of an attorney. Arguably an overly broad standard – but a rule that the Bar takes very seriously nonetheless.

How does that impact your blawgging? Very simply: anything you say can be scrutinized for a determination of whether it was “contrary to honesty and justice.” Whether it is on your firm’s blawg, or on your sports blog, on Facebook, Twitter, LinkedIn, Avvo . . anywhere. Even if you think that you are joking around with your friends and no one will ever see it, you are still facing running afoul of Rule 3-4.3.

Now, what about when you are blawgging in your “official capacity” as an attorney? Rule 4-8.4(d) is another “catch-all” rule, and covers your conduct as an attorney (as it is under the Bar’s Rules of Professional Conduct in Chapter 4). It is a broadly applied rule, and virtually any questionable conduct as an attorney can be charged under this section. That being said, the pertinent part of the rule applicable to blawgs is (emphasis mine):

A lawyer shall not . . . engage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis, including, but not limited to, on account of race, ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, or physical characteristic . . .

As with the Rule 4-8.2(a) (see below), you cannot say anything in a blawg that you do not have an objectively reasonable basis for saying. Again, you may think you do . . . whether the Bar thinks so is a different issue.

  • “An objectively reasonable basis.”

More pointedly designed for address actual statements made by attorneys is Rule 4-8.
2(a)
, “Judicial and Legal Officials”, “Impugning Qualifications and Integrity of Judges or Other Officers” (emphasis mine):

A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, mediator, arbitrator, adjudicatory officer, public legal officer, juror or member of the venire, or candidate for election or appointment to judicial or legal office.

Judges and other attorneys are not above criticism. However, the problem lies in what you – as an attorney – say about a judge or attorney. The Florida Supreme Court has held that Rule 4-8.2(a) is “designed to preserve public confidence in the fairness and impartiality of our system of justice.”  Florida Bar v. Ray, 797 So. 2d 556, 559 (Fla. 2001). 

The Court went on to say:

[b]ecause members of the Bar are viewed by the public as having unique insights into the judicial system, the state’s compelling interest in preserving public confidence in the judiciary supports applying a different standard than that applicable in defamation cases. For this reason, we, like many other courts, conclude that in attorney disciplinary proceedings under rule 4-8.2(a), the standard to be applied is whether the attorney had an objectively reasonable factual basis for making the statements.

Id.  “An objectively reasonable basis.” You as the blawgger may think that you have such a basis. That doesn’t prevent you from getting the complaint and undergoing the grievance process. I urge all blawgging attorneys to implement the same policy as many of them insist their clients use: never put it in writing. Resist the urge to tell the world what a jerk you think some judge or attorney is, or how poorly the judge runs his or her docket, or how badly you were treated by some judge. You wouldn’t stand on the courthouse steps and proclaim it, so why tell the whole world on the internet? Common sense and restraint are your best allies here. And, again, for those of you scoring at home: NEVER PUT IT IN WRITING.

  • Blawgging about cases and the courts.

Rule 4-3.5, “Impartiality and Decorum of The Tribunal”, prohibits an attorney from trying to influence a judge or juror except as permitted by law. It prohibits ex parte communication (4.3.5(b)) and communicating with a juror before, during, or after a trial (4-3.5(d)). Along those lines is Rule 4-3.6(a), “Prejudicial Extrajudicial Statements Prohibited”, which 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 materially prejudicing an adjudicative proceeding due to its creation of an imminent and substantial detrimental effect on that proceeding.” Similarly, Rule 4-4.4(a) mandates that “a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person or knowingly use methods of obtaining evidence that violate the legal rights of such a person.”

These rules are important because you never know what something you have blawgged about may be read by a juror or judge. Jurors themselves have been known to blog about jury duty during and after a case.  Juror Blogs Catching Court’s Eye”, The Tampa Tribune, June 3, 2007

f people are blogging about cases they are sitting on as jurors, you have to expect that they are looking for information about the case generally (we are kidding ourselves if we think otherwise). If you are blawgging, be especially careful not to discuss your pending cases (especially not with some “spin”), as posting comments for the world to see could be deemed to having been made in an attempt to communicate with or influence a jury.

What you say in a blawg could, if taken the wrong way, be deemed to be an embarrassment or harassment to someone. If you are going to blawg about a “third party” (a witness, or even someone you know off the street), be sure that you have your facts correct, checked, and that your contentions are supported. And be sure that there is a legitimate purpose for blawgging, other than to simply “call someone out.” At a minimum, make sure there is a viable “objectively reasonable basis” for your comments.

The point that should have been driven home by now was made by our parents when we were small: if you don’t have anything nice to say about someone, don’t say anything at all.

Is a blawg “advertising”?

We have discussed complaining in cyberspace about all those judges, attorneys, clients, jurors, cases, neighbors, celebrities, and everyone and everything else that makes you nuts. There are other uses for blawgs, however, that could possibly get you in hot water with the Bar. What is becoming more and more common is blawgging about of “recent victories” or other achievements designed to tell the reader about all the great things the attorney has done. Criminal defense attorneys are particularly adept at this practice, filling page after page with successful results from trials, motions, and appeals.

The Bar specifically controls direct solicitation via e-mail by Rule 4-7.6(c). An attorney’s participation in a chat room in order to solicit professional employment is prohibited by Rule 4-7.4(a).  Florida Bar Standing Committee on Advertising, Opinion A-00-1 (August 15, 2000).  I suppose that we will eventually see the Bar take up the issue of whether blawgs are a form of advertising, but nothing specific exists as of now.

Specific, I say. If a blawg is a part of the attorney’s website or run by an attorney, then Rule 4-7.6 will apply.

Rule 4-7.6(a) defines "computer-accessed communications" as “information regarding a lawyer’s or law firm’s services that is read, viewed, or heard directly through the use of a computer. . . [c]omputer-accessed communications include, but are not limited to, Internet presences such as home pages or World Wide Web sites, unsolicited electronic mail communications, and information concerning a lawyer’s or law firm’s services that appears on World Wide Web search engine screens and elsewhere.”

Notice the word “blog” doesn’t appear in that definition. However, the content of a blawg may be controlled by Rule 4-7.6(b), which mandates what basic information should be on the webpage. That rule begins, “[a]ll World Wide Web sites and home pages accessed via the Internet that are controlled or sponsored by a lawyer or law firm and that contain information concerning the lawyer’s or law firm’s services . . .” (emphasis mine). Rule 4-7.6(d) states that “[a]ll computer-accessed communications concerning a lawyer’s or law firm’s services, other th
an those subject to subdivisions (b) and (c) of this rule, are subject to the requirements of rule 4-7.2.” Rule 4-7.2 (“Communications Concerning a Lawyer’s Services”) is the Bar’s general advertising rule. 
So, perhaps a blawg IS a form of advertising. If it weren’t, would we all be spending so much time, money, and effort on beating our cyber-chests about how great we are and all the butts we’ve kicked in court?

Rule 4-7.2(c)(1) contains the “no-nos” of lawyer advertising. That section states that “[a] lawyer shall not make or permit to be made a false, misleading, or deceptive communication about the lawyer or the lawyer’s services . . . [a] communication violates this rule if it . . . (f) contains any reference to past successes or results obtained” (emphasis mine).

So, reading all these rules together, it seems that an attorneys’ website that discusses the attorney’s past victories is prohibited. As I have stated, there is nothing specific on this from the Florida Bar . . . yet. Florida Bar ethics counsel Elizabeth Tarbert has been quoted as saying, “[w]e’ve been regulating Web sites for years . . . a blawg is nothing but a Web site that’s updated on a regular basis.”  Legal blawgs gaining popularity”, Financial News & Daily Record, July 3, 2006Blawgs are on the Bar’s radar, so take precautions in how far you go in appearing to convince a reader that you can obtain similar results for him or her based on what you have done in the past.

What about all of you high-profile attorneys who put newspaper articles about you on your website? That’s just repeating what someone else wrote about you, right? Wrong. The Florida Supreme Court has held that by taking newspaper articles and including them in a solicitation for legal representation, an attorney is deemed to have adopted the articles’ contents and made them into advertising copy, and the articles’ contents become subject to the strictures of the Bar’s advertising rules.  Fla. Bar v. Gold, 937 So. 2d 652, 657 (Fla. 2006).  That means that including the articles in a website or blawg is potentially prohibited by Rule 4-7.2(c)(1)(f).

The best advice is to thoroughly read the Rules and ethics opinions on electronic advertising, and make sure you know what is on your webpages and your blawg.

What about your legal assistant’s blogging habits?

Remember Rule 4-5.3, “Responsibilities Regarding Nonlawyer Assistants”? That rule essentially states that you as the lawyer have supervisory responsibility over the nonlawyer assistants, and shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.

Rule 4-5.3(3)(b) mandates that the attorney shall be responsible for the conduct if he or she knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

If anyone in your office has a blog or blawg (or even a Facebook or Twitter account), be sure to (a) know about it, and (b) read it regularly. You don’t want to find out later that he or she has been posting sensitive information or prohibited comments. It is a good idea to adopt an internet policy that includes use of information gathered in the course of employment ANYWHERE on the internet. You cannot stop someone from posting information on the internet, but you can limit or mitigate your liability for their actions. So, try to nip it in the bud before it starts.

How blawgging could get you in trouble

Now, sit back, kids, and let Uncle Joe tell you the story of how blawgging backfired on an attorney. This is the story of “The Bench, the Barrister, the Bar, and the Blawg.” This is an not-so-old tale, with no happy ending. The lesson to be learned is a valuable one.

Recently, the Bar prosecuted an attorney who expressed his disdain for the practices of a sitting judge. Attorney Sean Conway made an entry on a local courthouse blawg about the policies of a judge sitting on the criminal bench, entitled "Judge Aleman’s New (illegal) ‘One-week to prepare’ policy".

The post to the actual entry is still online.  Judge it for yourself. Essentially, the attorney was voicing his concern about the judge’s policy of setting a criminal case for trial within a month of arraignment, then demanding a waiver of speedy trial before granting a continuance of the trial. He gave dates pertinent to the issue. He wrote the entry in a logical manner. His genuine concern for the propriety of being forced to waive speedy without investigating the case is evident in his posting. Mr. Conway was trying to help the Bar in his clients and his legal community, of that there is no doubt.

The problem was with what he said about the judge herself, Cheryl Aleman. He called her attitude “ugly” and “condescending.” He wrote that Judge Aleman was “clearly unfit for her position and knows not what it means to be a neutral arbiter”, and stated that she was “seemingly mentally ill.” The referred to her as the “EVIL, UNFAIR WITCH”, and went on to abbreviate that moniker as “EUW”. He used an off-color word in passing, but not in reference to the judge. Mind you, this was on the courthouse blawg – a very well-read courthouse blog, to boot.

Sometime later, Mr. Conway received the dreaded “Personal and Confidential” letter from the Florida Bar. He was charged with violating Rules 3-4.2, 3-4.3, 4-8.2(a), 4-8.4(a), and 4-8.4(d).  See Report of Referee, Supreme Court Case SC08-326 (Florida Bar File No. 2007-51,308 (17B)).  Ultimately, Mr. Conway entered into a consent judgment and was only reprimanded.  See Order dated October 29, 2008, Supreme Court Case SC08-326

While he may have had some valid defenses to some of his statements and actions, we will never know what a judge would have concluded at a Bar trial on the matter. In fairness to Mr. Conway, I have not made any attempt to interview him for this article. I will let the Bar documents speak for themselves. I reiterate that it is my belief that his motive for posting the blawg seems to have been born of genuine concern as an advocate and for the integrity of the criminal system.

Here’s the twist: Judge Aleman was recently reprimanded by the Florida Supreme Court for conduct in a separate matter. T
he Judicial Qualifications Committee found that her conduct was "arrogant, discourteous, and impatient," as well as "[in]adequate," "improper," "unacceptable," and "unreasonable." Inquiry Concerning a Judge (No. 06-52) v. Aleman, 995 So. 2d 395, 399 (Fla. 2008).  She was
publically reprimanded by the Court in Tallahassee.  As Justice Quince told Judge Aleman, “we will not hesitate to punish errant judges in a most public manner.”

The lesson to be learned from this is that the Supreme Court will take care of those “errant” judges – a matter that is better left for the Court as opposed to an attorney’s attack in a blawg. A small consolation for Mr. Conway, I suppose, as he still has his own reprimand on his Bar record.

One other story of note is a former assistant state attorney who posted an inneroffice e-mail about a police shooting on a courthouse blog.  See Prosecutor loses suit against Miami-Dade state attorney”, The Miami Herald, June17, 2009.  The details of the shooting are not relevant to the article, but suffice it to say that the ASA thought the shooting to be suspicious and that the cop was not justified. He let his feelings on the matter be known to his superiors in an email. Shortly thereafter, he was removed from investigating the shooting. Years later, when the shooting was cleared, he posted that e-mail on the local courthouse blog. He was then suspended (the SAO brass cited other reasons, of course). After he filed a Federal lawsuit, and there were heated blawg posts, and most recently his recent resignation . . . the undeniable conclusion that remains is that there is always someone watching what you are posting on the internet. And if the reader doesn’t like it, count on everyone knowing about it – including possibly the Florida Bar.

*     *     *     *     *

I am not advocating any restraints on free speech.  Nor am I concluding that these Rules put a chilling effect on your right as an individual to exercise your rights to free speech in your blawg. But I caution each of you to think before you type, lest you end up like poor Mr. Conway. He brought up an arguably valid point, and was valiantly attempting to warn his fellow practitioners of what he perceived to be a real and present danger for criminal defendants. Perhaps he went overboard with some of his comments – apparently the Bar thought he did. I put all of this out there for your consideration as you put your thoughts into cyberspace.

Happy blawgging, but be careful out there. You never know who’s watching . . .

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