By Traci R. Gentilozzi
No-fault attorney Steven M. Gursten is recognized as a zealous advocate for his clients. He’s also an avid blogger, posting an item nearly every day on his “Michigan Auto Law Blog.” But a blog post from November 2014 has resulted in a complaint being filed against Gursten with the Attorney Grievance Commission, demonstrating that lawyers need to be careful when blogging.
The complaint against Gursten wasn’t filed by just anyone, either. It was brought by Dr. Rosalind Griffin, a well-known Michigan independent medical examiner (IME), and a member of the Attorney Discipline Board.
Dr. Griffin’s complaint with the AGC is based on a Nov. 13, 2014, blog post by Gursten, in which he suggested the doctor committed perjury in a no-fault case where Gursten represented the plaintiff, an injured truck driver. Here’s some of what Gursten said in that post: “How many thousands of innocent and seriously hurt people lose everything because of so-called ‘independent medical exams,’ such as this example by Michigan psychiatrist Dr. Rosalind Griffin? … These IME doctors do enormous damage to people, and they get away with it time and time again. … Decide for yourself whether my top 9 ‘hatchet job’ tactics were used by Dr. Griffin in my case ….” Gursten then set forth the nine instances where Dr. Griffin allegedly used such “hatchet job” tactics.
Dr. Griffin took issue with what Gursten said (maybe “insinuated” is a better word). In a letter dated Dec. 7, 2015, Gursten was informed by the AGC that Dr. Griffin had filed a “Request for Investigation” (RFI), citing the blog item as the reason for her complaint. In her RFI, Dr. Griffin stated that Gursten’s blog post “misrepresents” her credentials, testimony and her character. According to Dr. Griffin, Gursten’s conduct “involves dishonesty and misrepresentations which reflect adversely on his honesty, trustworthiness or fitness as a lawyer within the meaning of MRPC 8.4.” She further asserted Gursten’s conduct is “prejudicial to the administration of justice in that it purports to portray the legal system as some sort of game in which litigants can expect no justice from the legal system and that witnesses who express an opinion that is different than Mr. Gursten’s are deemed perjurers who intentionally set out to cause ‘seriously hurt people [to] lose everything.’” Dr. Griffin also pointed out that, when someone does a Google search looking for a psychiatrist, Gursten’s blog post is the “first item returned,” thereby guaranteeing it will be seen.
Dr. Griffin has asked the AGC to investigate the matter and to force Gursten to delete his blog post and remove the Google link.
On Jan. 25, 2016, Gursten took to his blog, this time responding to the complaint that Dr. Griffin filed with the AGC. Here’s some of what Gursten said: “I wanted people to know what happens when accident victims are forced to see many of these IME doctors today. So I wrote about what Dr. Griffin did to my client. I presented her testimony about the answers she claimed my client gave. And then I showed what my client really said. I then invited you, the public, to decide for yourself whether Dr. Griffin knowingly committed perjury. … If Dr. Griffin has her way, this blog post may be one of my last. But I’m not backing down. So today I’m sharing Dr. Griffin’s entire trial testimony by video and the full unedited transcript of her testimony …. I’m also pointing out some of the most disturbing examples of what she did. Why am I risking my license to practice law? Because people need to know about the harms that this type of conduct is causing to innocent and seriously injured people in communities and courtrooms all over America today.”
Gursten has asserted that what he writes on his blog is free speech protected by the First Amendment. According to Gursten, he does not “lose” these protections because he is an attorney. “Dr. Griffin is using her position and her power on the Attorney Discipline Board to silence this blog,” Gursten said. “She may not like that I’m exposing her conduct, but her attempt to force me to take down this blog post about her and further to punish me for speaking truth to power violates the First Amendment and its most basic and fundamental protections.”
Putting Gursten’s predicament aside, let’s begin with the premise that blogging is an excellent marketing tool for lawyers, when used properly. With a blog, lawyers can talk about verdicts and settlements they’ve achieved and hot-button issues in their field, as well as legislation and court rulings that affect their practice area. Recent studies show the majority of new clients now find their lawyers online, so a well-maintained blog is a great way for attorneys to reach these new clients and showcase their expertise.
However, in Gursten’s case, the question has now become whether it is appropriate for lawyers to use a professional blog to “expose” (a term Gursten himself used) the perceived misconduct of a judge, opposing counsel or someone otherwise involved in a case, like Dr. Griffin.
The answer to this question remains to be seen.
With that said, the complaint against Gursten should be a learning opportunity for both the State Bar of Michigan Professional Ethics Committee and lawyers in general. To date, the ethics committee has not addressed a situation like Gursten’s and, hopefully, it will choose to provide some guidance in this expanding area of legal marketing.
The AGC complaint against Gursten also demonstrates that attorneys must be diligent in their blogging habits. Lawyers should:
• Never divulge confidential client information when blogging about a specific case.
• Make sure the blog does not cross over into the realm of attorney advertising (although a true blog is not “advertising” at all).
• Think before posting a blog item. The blog piece may have been written, but that doesn’t mean it should be posted. Just like it is ill-advised to spout off on Facebook or Twitter
when bothered or upset, lawyers should refrain from doing the same on their professional blogs.
when bothered or upset, lawyers should refrain from doing the same on their professional blogs.
Attorneys who have faced consequences over critical blog posts (to date, there are not many) have asserted First Amendment protection, as Gursten has. However, the First Amendment is not a guaranteed safe harbor.
For example, take a Florida defense attorney who was unhappy with a judge’s handling of a case. After complaining to the Judicial Qualifications Commission and getting no response, the lawyer blogged about what he perceived as the judge’s inappropriate behavior. The attorney admitted he wanted to “expose” the judge for the alleged conduct. The Florida Bar concluded the lawyer violated five ethics rules, including that he made false or reckless statements regarding the qualifications or integrity of a judge, and engaged in professional conduct that is prejudicial to the administration of justice. The Florida Supreme Court rejected the lawyer’s claim that his actions were protected by the First Amendment. The attorney ultimately agreed to a public reprimand and a fine of $1,250.
The ethics case against Gursten is just in its beginning stages, and it will be up to the AGC to determine whether his conduct violated any Michigan Rule of Professional Conduct. Also, if the commission does find that Gursten acted contrary to the ethics rules, it will then be interesting to see the involvement, if any, of Dr. Griffin, as a member of the ADB.
Some Michigan attorneys may be raising their eyebrows at Gursten’s rather unconventional approach — using his blog to criticize Dr. Griffin and then blogging again after she filed a complaint with the AGC. Meanwhile, other lawyers are likely in Gursten’s corner, chanting that blog writing is free speech protected by the First Amendment.
But no matter what side you’re on, there is one thing that cannot be disputed: Gursten deserves credit for not backing down. According to Gursten: “I do not know what the Attorney Grievance Commission will do to me. But, I do know that I’m willing to face whatever comes next. The public needs to know about what Dr. Griffin did.”
Will Gursten ultimately be vindicated? Stay tuned, as the case winds its way through the discipline process.
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Michigan attorney Traci R. Gentilozzi is a legal writer and editor who owns 360 Legal Solutions PLLC in Lansing. She also is a former publisher/editor and news editor at Michigan Lawyers Weekly.
