• February 26, 2015
Flickr Creative Commons phote by Simon Scott

Flickr Creative Commons phote by Simon Scott

Lawyer ethics are implicated in blogging. For starters, there is, of course, the lawyer’s obligation of confidentiality (Minn. R. Prof. Cond. 1.4). Also, in my opinion, ethical rules regarding conflicts of interest may be implicated.

Minn. R. Prof. Cond. 1.8, for example, provides, “A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these rules.” So, for example, I would suggest that a blog post that is drawn from experience in one’s practice, which is disadvantageous to one’s client but does not identify one’s client or any of her confidential information, still seems unethical to me. You cannot use your experience in your client’s case, I would suggest, to advocate a position in public that disadvantages your client. At least certainly not a current client.

And, of course, there are rules under section 7, “Information about Legal Services,” that all need to be respected. You cannot tout yourself as an expert in ______ when you are not and so on. And, you must observe the lawyer ethics catch-all provisions, Section 8 (“Maintaining the Integrity of the Profession”), 8.4 (“Misconduct”), 8.4(b)(“don’t be a criminal”), 8.4(c) (“don’t be a liar”), 8.4(d) (“don’t be a jerk”), 8.4(g) (“don’t be a bigot”) etc.

But what about journalistic ethics rules? Do these rules apply to legal blogging?

The strict and straight answer must be, “No.” Legal bloggers are not professional journalists. There is no accreditation for legal bloggers. There is no “ethics board” that one can lodge a complaint against a legal blogger for breach of a professional journalist ethics standard.

Having said that, have a look at the linked journalistic ethics code.

As a legal blogger, does your blog ever run afoul of these commandments? I sure hope mine doesn’t. Why not adopt them?

Sometimes the ethical standards are difficult to apply in every case. For example, now more than ever, with so much information available, there is the potential for unwarranted and unnecessary harm, simply by drawing attention to not-entirely-private but not widely public facts: allegations in lawsuits, for example. What makes these situations particularly difficult is that the parties and the lawyers involved are often effectively gagged. They cannot respond publicly.

Recently, I had the difficult experience of a private communication with a Minnesota Litigator reader informing me that a blog post on a legal matter coincided with the untimely death of someone involved in the underlying lawsuit. The caller informed me that the blog post, while well-intended and accurate in all respects, caused the family harm. I took the post down out of respect for the family.

Also, several times now over the past seven years of blogging, I have had lawyers contact me and suggest that I had lawfully obtained court filings but that there were sensitivities involved in the cases. The lawyers have politely requested that I take down the linked filings. And I have.

Only once (that I will share publicly) have I found that requests to remove information were unjustified and inappropriate. Even then, I accommodated the requests that I remove the information. But, because I found the removal requests to be as or more revealing than the information that was removed, I kept the post up but removed the information that was objected to, making a point of saying why the information was removed.

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