New York addresses legal blogging ethics

ROCHESTER, NY--Although blogging has been around for well over a decade now, our profession was late to jump on the bandwagon. Nevertheless, the ethics of legal blogging has been an issue from the get go. For example, when blogging first reared its ugly head, there was much debate about whether a legal blog constituted an "advertisement" as defined by the Rules of Professional Conduct. Although some time has passed since blogging first emerged upon the legal scene, intriguing ethical issues still abound. For example, the most recent ethical inquiry arose last month when the New York State Bar Association's Committee on Professional Ethics wrestled with this rather interesting legal blogging ethical quandary: Whether the rules prohibit a lawyer from "hosting or participating in a blog dedicated to publishing factually accurate criticism of another lawyer's professional conduct." In other words, may a lawyer talk trash about another lawyer on a legal blog, as long as the allegations are "factually accurate?" Before diving into the committee's analysis and conclusion--two observations. First, I find it hard to believe that one attorney has such animosity toward another attorney that s/he feels the need to: 1) establish a blog criticizing that attorney, and 2) had foresight to seek the committee's ethical blessing prior to doing so. If nothing else, the convoluted and timeconsuming nature of this undertaking makes me wonder what kind of world we're living (and practicing) in? Second, I take issue with the wording of the inquiry itself because I disagree with the underlying assumption that "allegations" can be "factually accurate." Sure the underlying factual allegations may be true, but the conclusions or "allegations" based thereon are neither accurate nor inaccurate. Instead, aren't they simply one person's opinion drawn from an analysis and interpretation of the facts? I don't see how an interpretation of the facts can be "factually accurate." That being said, before I go too far astray, let's delve into the committee's analysis of this inquiry, shall we? First, the committee noted that the rules forbid lawyers from criticizing judges, but are silent as to criticism aimed at other lawyers: "Although Rule 8.2 of the New York Rules of Professional Conduct (the "Rules") expressly addresses lawyer criticism of judges ... there is no comparable provision that specifically addresses public criticism of a lawyer by a lawyer. Therefore, any ethical restraint on such expression would, under the rules, necessarily derive from the more general provisions of Rule 8.4(c), prohibiting a lawyer from engaging in conduct "involving dishonesty, fraud, deceit or misrepresentations", or Rule 8.4 (d), prohibiting a lawyer from engaging in conduct that is "prejudicial to the administration of justice." The committee then turned to its analysis of Rules 8.4(c)and (d), and said analysis was surprisingly perfunctory. Without much discussion or explanation, the committee essentially concluded that as long as the criticism was "accurate," all was good: "Assuming that the blog criticism is sufficiently accurate and in context not to run afoul of Rule 8.4(c), the question is whether there are any limitations arising from Rule 8.4(d) on a lawyer's factually sustainable public criticism of another lawyer." The committee then tempered its conclusion by applying the restrictions of Rule 8.4 (d) and then adding that critical lawyers should keep in mind that pursuant to the "Standards of Civility" adopted by the Uniform Court System, attorneys "should avoid vulgar language, disparaging personal remarks or acrimony towards other counsel, parties or witnesses." Finally, the committee also observed that pursuant to Rule 8.3(a), lawyers are required report the misconduct of other lawyers to the appropriate tribunal. In other words, feel free to trash talk your colleagues online, but keep it clean. And, trash talking is a double edged sword: if you insist on blogging about your colleague's malfeasance, you'll also have to turn your unethical colleague in--or risk facing a disciplinary claim yourself. Nicole Black is VP at MyCaseInc.com, a cloud-based law practice management platform. She is also of counsel to Fiandach & Fiandach in Rochester and is a GigaOM Pro analyst. She 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 speaks regularly at conferences regarding the intersection of law and technology. She publishes three legal blogs and can be reached at niki@mycaseinc.com. Entire contents copyrighted © 2012 by The Dolan Company. All rights reserved. Reproduction in whole or in part without written permission is expressly forbidden. Published: Thu, May 3, 2012