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Should a lawyer be blogging or tweeting about their own cases?

I received a call yesterday from a reporter looking for my comments on whether a lawyer should be be blogging or tweeting about their own cases.

I thought it an interesting question. I’d welcome your comments, whether here or in the LinkedIn Legal Blogging Group where I’ll cross post this question.

I analogized to talking to the press, which I was called on to do a fair amount in higher profile cases, especially those that involved political causes ending up in court and on appeal.

I reviewed a lawyer’s first obligation being to their client, not to do anything that would be contra to advancing the interests of a client. Some lawyers can’t seem to resist the limelight of free publicity for themselves, but the client comes first. The same will be true for blogging and tweeting which can draw a lot of public and media attention.

A clients consent may be necessary. That’s especially true with a corporate client who controls their communications and messaging.

I explained that a lawyer is ‘supposedly’ unable to say things to the media that would be inadmissible in evidence. I say supposedly because I see a heck of lot more discussed by lawyers in the press than that which may be admissible later on. And the lawyers appear to be doing to so with impunity.

I shared that many judges, whether there may a gag order or not, frown on lawyers being too vocal with the press. So doing so can come back to haunt a lawyer and client.

I cautioned that social media leaves a ‘printed’ record that lasts forever — though I have had the defense get tapes of me talking to the press about pending legal action and get them transcribed.

I shared my personal views of what I would be doing as a plaintiff’s lawyer today. In cases where public sentiment was a concern of the defendant, I’d use my blog and social media, just as food safety lawyer Bill Marler does. I’d be apt to publish pleadings, defense responses, and relevant info along the way.

I respect the viewpoint of Canadian trial and appellate lawyer, Antonin Pribetic, expressed on Scot Greenfield’s blog, not to comment to the press and not to ‘try the case’ to the press.

That’s the practice of many, if not most, good lawyers. My practice was to not give it a ‘no comment.’ The reason being that I thought the press played a role in democracy and in coverage of our judicial system. Without any comment from lawyers, even explaining certain proceedings etc, we’d leave the press and the public in the dark.

As a lawyer I also knew having friends in the media was important. I was not naive enough to think that the media, especially papers in those days, did not influence public opinion and ultimately a defendant. Say no comment enough and you do not build much of a relationship with the press. Today relationships with reporters are nurtured through social media.

There’s also a role where social media could be used for investigation and informal discovery. I had a case where an insurer covering Southwest Wisconsin farmers was denying fire insurance claims. I wanted to find out how many farmers claims were wrongly denied.

My discovery was meeting some dead ends so I ran ads in some ‘shopper newspapers’ distributed in rural areas. The info I was looking for came. Today I’d be blogging about it and seeking info through the net.

In that case the insurer was nice enough to sue me for defamation – basis was I implied there may be other claims. Their case was dismissed and the decision upheld on multiple appeals.

Scott Greenfield asked why the reporter would call me, as opposed to a lawyer who was currently practicing.

It’s not totally illogical for a reporter to ask me. I have some familiarity with the law having practiced as a trial lawyer for almost 20 years and have some familiarity with blogs and social media, having advised lawyers on their use for the last 8 years.

But Scott’s point is well taken and next time I am asked I may suggest that the reporter give someone practicing today a call. Note that I did mention lawyers who comment on pending cases on their blog. I don’t know if she called them.

Interesting question that being whether a lawyer should be blogging or tweeting about their own cases. I welcome the feedback of other lawyers.

  • http://aclatterofthelaw.com Rossa McMahon

    This is an interesting question that will be asked more often in coming months.
    In Ireland, lawyers are traditionally more conservative in this respect and even the more “media friendly” lawyers will usually wait until the conclusion of a case before talking to the media about it. As with the UK and Canada, we have two branches of the legal profession and while will, on occasion, hear a solicitor talking to the media it is very rare to hear a barrister talking about a case they were directly involved in.
    There are signs that this will change as Irish solicitors take to blogging, but again I think it will be a conservative approach to blogging about cases with no identifying details included. The professional code of conduct which applies to solicitors would require this at any rate, along with the Data Protection Acts 1988 and 2003 (effectively Irish privacy law). Therefore, I wouldn’t expect to see much comment from solicitors involved in high profile cases where the client can be readily identified even if not named by the solicitor. One exception to this might be corporate & public law cases, where some law firms already do case reports and state that they acted in the case. Again, however, such reports tend to be conservative and summarise the relevant legal points, most of which will usually have been already published by the media.
    Personally, I don’t see any problem with that form of anonymised comment. For example, I have a few small cases ongoing at the moment that might be of interest to certain people. They are the type of case that is almost never reported in the media or law reports, so I feel that blogging the outcome might provide useful information and would not be a form of advertising.

  • http://riskandthefuture@wordpress.com Christopher Dehame-Hare

    Blogging and tweeting, relating to court cases or any legal field, are going to be ever more important. The discussions about tweeting from court here in the UK following the Assange case have been quite healthy and illuminating about general legality: the emerging line as set out by Lord Judge in December 2010 seems to be that as long as you don’t disturb proceedings or put yourself in direct contempt of court, then its fine.
    I think that’s a reasonable position when a lawyer is putting out information on their client’s behalf. For an advocate to start blogging or tweeting about their client’s case, after all, is not really any different from making a statement to the press on their behalf, and that’s something that solicitors have been doing for donkeys’ years. There’s been a recent warning from the Attorney General about online publications getting into contempt of court, but even there it’s clear that as long as people stick to reporting the facts, and don’t go overboard editorialising during a trial, then they should be fine.
    As for generally blogging about the finer points of cases: I agree with the above that anonymised comment dealing with points of law on interesting cases should be fine in most cases. It would be best to get client consent on identifiable cases, though – and not to assume that your case can’t be identified.