Ethics: Beware pitfalls of blogging about cases

By Correy Stephenson Dolan Media Newswires BOSTON, MA--Writers are often encouraged to write about what they know. But for lawyers seeking a topic for a blog post, Facebook update or Tweet, should that include writing about their own clients and cases? Norm Pattis, a trial attorney in Bethel, Conn., authors a daily Tweet he calls the "Trench Menu," which provides a report "from the trenches" about his activities - a trial on this matter, or a pre-trial hearing on that issue. "I'm passionate about trial lawyering," Pattis said. "I want people to know that being a lawyer isn't a paper-pushing profession, but it's about helping and fighting for clients." On the other end of the spectrum, in his almost five years as a blogger New York personal injury attorney Eric Turkewitz has only written about a case or client on two occasions. Once he wrote a series about a trial as a "day in the life feature," but he didn't post it until after the trial was complete, and did not include personal information, like the client's name. The only other exception came after Newsday published a story about a pending case, and he responded on his blog. As a general rule, "it's bad form to write about a case," Turkewitz said. "You have to assume that jurors - even though they are not supposed to look stuff up - are going to anyway. And you don't want them to look up the lawyer or the accident in the case and see something they might be offended by." Twitter and blogs can be powerful marketing tools and a great way for lawyers to connect with potential clients when used properly, noted Jim McCauley, ethics counsel with the Virginia State Bar. "But lawyers who blog or Tweet about their cases face a number of possible ethics violations," he cautioned. "They should think before they post and ask themselves: do I want this to appear on everybody's computer screen or cell phone the following morning?" A fine ethical line One of the biggest problems, said ethicist Barry Temkin, a partner at Mound Cotton Wollan & Greengrass in New York City, is the risk of revealing client confidences. Model Rule of Professional Responsibility 1.6 states that a lawyer may not reveal any information relating to the representation of a client unless the client explicitly or implicitly permits it, Temkin said, which creates a very fine line for lawyers to walk when writing about a case. "If a Tweet is about a particular client or case, that is information relating to the representation within the meaning of the Rule," McCauley said. "If the Tweet is vague enough that would probably be ok, but if it contains facts that identify who the client is, that would be a problem." Rule 3.6, which prohibits statements that may affect the impartiality of a proceeding, and Rule 3.5, which limits communication with jurors during a trial, may also be implicated. "Lawyers blogging about a trial or arbitration could violate multiple rules and face the wrath of the judge and a disciplinary committee," Temkin warned. Tweets or blogs can run afoul of state advertising rules as well. In New York, "if the blog has news primarily about the lawyer or about the law firm, it is considered advertising," Temkin said. McCauley said that many states have a disclosure requirement that applies when specific case results are discussed. For example, in Virginia the state rules require lawyers to say that past results are not predictive of what might happen in future cases, and that each case is different and the outcome will be based on the particular facts of the case. But if a lawyer Tweeted about a recent sizeable verdict, "with only 140 characters, he isn't likely to be able to comply with the disclaimer requirement," McCauley noted. To avoid this problem, he suggested using Twitter to re-direct followers to a website or blog, where the attorney can provide more substantive content and be more likely to comply with ethical rules by using disclaimers. Avoid relationships Temkin also cautioned attorneys about the interactive features of online commentary, where readers can comment on Facebook status updates and blog posts and respond to Tweets. "With that level of interaction, lawyers have to be very careful that an attorney/client relationship doesn't start," he explained. For example, if a lawyer blogs about a recent employment law case and a reader comments about her own personal employment experience, it's important not to reply with specific advice, especially if a client conveys confidential information. Click-through disclaimers can help protect against creating an attorney/client relationship. Lawyers can caution readers that they are not creating a relationship or state unequivocally that the blog itself doesn't constitute such a relationship or offer legal advice. It's also important to police what your readers post. "If a former client posts a comment on my blog like 'Jim McCauley is the greatest legal ethics lawyer in the U.S.,' I have a duty to take that down," McCauley said. If you do decide to blog or Tweet about a case, keep the discussion to matters of public record as much as possible, suggested Kevin O'Keefe, founder and CEO of LexBlog in Seattle and author of Real Lawyers Have Blogs. And err on the side of caution. "If you are not sure whether or not to hit the publish button, don't," Turkewitz advised. Entire contents copyrighted © 2011 by Dolan Media Company. All rights reserved. Reproduction in whole or in part without written permission is expressly forbidden. Published: Thu, Apr 21, 2011