PROFESSIONAL LIABILITY A Primer The Evolution of Legal and Ethical

By Peter Biging and Claims in the Age of Jason Ederer Attorney Blogging

Blogging carries risk In the internet age of lawyering, attorneys and law firms for attorneys, but the have often turned to social media as a means to opine on, court decisions do report, share, and interpret decisions in their respective offer some ideas about fields of practice. Use of a professional’s blog, Twitter feed, or Facebook page provides an attorney or representation in the course of a communi- how to reduce it. his or her law firm with an opportunity to cation. These posts can also result in ethics disseminate criticism and commentary to violations if not handled with care. a wider audience than could ever be imag- As the technology for disseminating and ined. These blogs have become a tool not the dissemination of these materials has only for “reporting” in the broad sense, but become more prolific and mainstream, a also of showing off an attorney’s or firm’s number of court rulings have helped detail knowledge as a way to generate business the contours of what is safe and appropri- and attract potential clients to a firm. For ate to do, and what can get you into trou- many, it has become a powerful and abso- ble. This article will discuss several recent lutely indispensable marketing tool. How- decisions throughout the United States ever, in the words of Peter Parker’s Uncle that shed some light on the evolution of Ben, with this great power has come great the legal analysis of the issues presented, responsibility: these legal blog posts can and how the courts can be expected to deal potentially leave attorneys open to defama- with these issues. The article will also sug- tion claims against them as individuals or gest some practical tips to avoid getting against their law firms, and their Facebook into trouble. posts and Tweets could just as easily leave them on the hook for a potential malprac- The Basic Rules tice claim based on the contention that an Defamation is defined as the making of attorney or a firm provided legal advice or a false statement of fact, which “tends to

■ Peter Biging is a partner with the law firm of Goldberg Segalla LLP, where he heads up the firm’s New York metro area professional liability practice. He is a member of DRI, writes and lectures frequently on pro- fessional liability practice issues and is also the vice chair of the ABA TIPS’s Professionals’, Officers’, and Directors’ Liability Committee. Jason Ederer is a senior associate with the law firm Goldberg Segalla LLP in its New York metro area office, where he focuses his practice on professional liability, intellectual property, and sports and entertainment law. He is a member of DRI, a regular contributor to his firm’s Professional Liability Matters blog, and has been published on a number matters in the realm of professional liability law, with a focus on trends in the field of legal malpractice and professional liability defense.

60 ■ For The Defense ■ October 2016 © 2016 DRI. All rights reserved. expose the plaintiff to public contempt, rid- particular that have factored prominently statements that they include that could be icule, aversion or disgrace. Sandals Resorts in the defense of these types of cases: state- construed as either a fact or an opinion, a Intl. Ltd. v Google, Inc., 925 N.Y.S.2d 407, ments that are “non-­actionable opinion” fair report of a judicial proceeding or sim- 412 (N.Y. App. Div. 2011). See also Restate- and statements that are protected by the ply an advertisement for a firm’s accom- ment of Torts (2d) §559. The basic elements “fair reporting privilege.” plishments, the line marking defamatory of a claim for defamation based on a writ- “Since falsity is a sine qua non of a libel conduct from conduct that is not has often ing are fairly universal throughout juris- claim and since only assertions of fact are been blurred. These situations are exam- dictions in the United States. For example, capable of being proven false,… a libel ined in turn below. to establish libel under New York law, a action cannot be maintained unless it is plaintiff must prove five elements: “(1) a premised on published assertions of fact,” written defamatory factual statement [of rather than on assertions of opinion. San- and] concerning the plaintiff; (2) publica- dals Resorts Intl. Ltd. v Google, Inc., 925 tion to a third party; (3) fault; (4) falsity N.Y.S.2d 407, 412 (N.Y. App. Div. 2011). The These blogs have of the defamatory statement; and (5) spe- U.S. Supreme Court discussed statements cial damages or per se actionability.” Sor- of non-­actionable opinion in Gertz v. Rob- become a tool not only villo v. St. Francis Preparatory Sch., 2015 ert Welch, Inc., 418 U.S. 323 (1974), stating U.S. App. Lexis 6424, 2-3 (2d Cir. Apr. 20, that “[u]nder the First Amendment there is for “reporting” in the 2015); Celle v. Filipino Reporter Enters. Inc., no such thing as a false idea. However per- 209 F.3d 163, 176 (2d Cir. 2000) (applying nicious an opinion may seem, we depend broad sense, but also of New York law). The same elements are reg- for its correction not on the conscience ularly applied elsewhere. See Armstrong of judges and juries but on the competi- showing off an attorney’s v. Shirvell, 596 Fed. Appx. 433, 441 (6th tion of other ideas. But there is no consti- Cir. 2015) (applying Mich. law); Hogan v. tutional value in false statements of fact.” or firm’s knowledge as a Winder, 762 F.3d 1096, 1105 (10th Cir. 2014) Essentially, the First Amendment protec- (applying Utah law). tion would clear statements of opinion by way to generate business From an ethical standpoint, legal blog- the statement’s author. ging has been analyzed under ABA Model The fair reporting privilege, which has and attract potential Rule 7.1, which has been formally adopted actually been codified by numerous states, or codified, or both, in many jurisdictions, is also a prominent defense to defamation clients to a firm. and states that “[a] lawyer shall not make a claims, shielding defendants from liability false or misleading communication about “against any person, firm or corpora- the lawyer or the lawyer’s services.” In re tion, for the publication of a fair and true An Examination of the Claims Hubbard, 2013 U.S. Dist. Lexis 14949, 12–13 report of any judicial proceeding,” with and Issues That Can Arise (S.D. Cal. Feb. 4, 2013); Accord Mustang “[a] publication [] deemed ‘fair and true’ An interesting case examining an attor- Enters. v. Plug-In Storage Sys., 874 F. Supp. if it is ‘substantially accurate.’” See, e.g., ney’s use of social media and the possi- 881, 885 (N.D. Ill. 1995). The rule adds that Tacopina v. O’Keeffe, 2016 U.S. App. Lexis ble legal and ethical ramifications arising “[a] communication is false or misleading 5740, at *2 (2d Cir. Mar. 29, 2016) (citing out of the use was Hunter v. Va. State Bar if it contains a material misrepresentation New York Civil Rights Law §74). Amway ex rel. Third Dist. Comm., 285 Va. 485 (Va. of fact or law, or omits a fact necessary to Corp. v. P&G Co., 346 F.3d 180 (6th Cir. 2013). In that case, the attorney in ques- make the statement considered as a whole 2003) (citing Mich. Comp. Laws Ann. tion authored a blog, accessible from his not materially misleading.” Id. Addition- §600.2911(3)); Walker v. Beaumont Indep. law firm’s website, which contained posts ally, Model Rule 1.6 states: “A lawyer shall Sch. Dist., 2016 U.S. Dist. Lexis 41408 discussing “a myriad of legal issues and not reveal information relating to the rep- (E.D. Tex. Mar. 11, 2016) (citing Tex. Civ. cases.” Id. at 491. However, a majority of resentation of a client unless the client gives Prac. & Rem. Code §73.002). While first the attorney’s posts were about cases for informed consent.…” See United States ex used to allow newspapers and journalists which the attorney had received favorable rel. Holmes v. Northrop Grumman Corp., to report the facts of judicial proceedings, results for his clients. Id. Neither the posts 2016 U.S. App. Lexis 5370 (5th Cir. Mar. as seen in more detail below, this defense nor the website contained any disclaim- 23, 2016) (quoting ABA Model Rule 1.6(a)); and privilege have become a key argument ers to the effect that the attorney and his McClure v. Thompson, 323 F.3d 1233, 1242 for affording attorney bloggers with the firm could not guarantee such results for (9th Cir. 2003); Nat’l Fedn. of Indep. Bus. chance to disseminate case results (either others. Id. As such, the Virginia State Bar v. Perez, 2016 U.S. Dist. Lexis 89694, at *25 theirs, or the results of other interesting launched an investigation into the attor- (N.D. Tex. June 27, 2016). case in their fields) quickly and easily, ney and his blog, and eventually, in March Normally, there are several defenses that without risking liability for potential def- of 2011, charged the attorney with violat- are available to defendants in defamation amation claims. ing several of the Virginia Rules of Profes- cases, including the defense of truth. How- Due to the unique situation that blogs sional Conduct, alleging that the posts were ever, courts have examined two defenses in often present to a court, and the mixture of “inherently misleading as they lacked dis-

For The Defense ■ October 2016 ■ 61 PROFESSIONAL LIABILITY claimers,” and they “reveal[ed] information they more often than not referred to the appeared to be relaying a conversation. that could embarrass or likely be detrimen- attorney’s cases in which he had obtained Id. at 522. The court also noted that while tal to his former clients by discussing their favorable results for his clients, signaling the context and language suggested that cases on his blog without their consent.” to those potential clients around him that the attorney was expressing his opinion in Id. at 492. Even though the attorney testi- such results were ascertainable for them another of the statements, the statement fied regarding legitimate reasons for post- without a proper disclaimer. Id. at 504. arguably “impl[ies] the existence of undis- ing, including marketing and creation of a Interestingly, though, the court noted that closed facts on which those opinions were community presence for his firm, after a to the extent that the information about a based.” Id. at 523. hearing in which several of his former cli- case is aired in a public forum, such as a Lastly, as to the fair reporting argu- court, “privacy considerations must yield ment regarding the alleged criminal activ- to First Amendment protections” and that ity, the court opined that if it was untrue, “a lawyer is no more prohibited than any “an accusation that one provided her attor- The court noted that other citizen from reporting what trans- ney with false information amounts to a pired in the courtroom.” Id. at 503. claim that she attempted to use her lawyer to the extent that the That same year, a New York federal to get false evidence into a legal proceed- court had a similar opportunity to examine ing… [and] [s]uch an accusation is defam- information about a case claims arising from postings on an attor- atory in nature.” Id. at 524. So, again, while ney’s law blog in Sang v. Hai, 951 F. Supp. recognizing the inherent protections avail- is aired in a public forum, 2d 504 (S.D.N.Y. 2013). There, the plaintiff able to a lawyer to report court proceedings was a former internationally recognized fairly and accurately, and to espouse non-­ such as a court, “privacy gymnast who was previously represented actionable opinion, the court determined by the defendant attorney and her law firm that these protections only go so far. considerations must in an earlier action. Id. at 514–515. After Also that year, a New York state court that case was settled, the client and her considered similar claims but reached a yield to First Amendment attorney had a falling out, and the attorney different conclusion. InRakofsky v. Wash- made “several [allegedly false] statements ington Post, 971 N.Y.S.2d 74 (N.Y. Sup. Ct. protections” and that “a about Plaintiff,” which became the sub- 2013), the plaintiff was an attorney who had ject of the lawsuit. Some of the statements represented a man accused of first-degree lawyer is no more prohibited were allegedly made on the attorney’s law murder in Washington D.C. Id. at 74. Dur- blog, some in a press conference and some ing the trial for the accused, it came out than any other citizen from in an interview, all in the years 2011–2012. that the attorney-­turned plaintiff, who had Id. at 514–515. The blog statements in par- retained a certified defense investigator to reporting what transpired ticular were wide-­ranging, and included aid in his client’s defense in the murder statements in separate posts alleging that trial, had e-­mailed the investigator request- in the courtroom.” the plaintiff had ill-treated her own dog ing that the investigator “trick” a witness and she had engaged in criminal activity, into admitting that she told lawyers that in addition to other things. Id. at 515–516. she did not see the shooting and did not ents testified that the attorney’s posts were An example included Hai’s blog entry that provide the government with any infor- embarrassing or detrimental to the clients “Sang Lan has defaulted on her rent and mation about the shooting. Id. Further, it themselves, the bar committee held that he stole the keys. She also accused me of mis- came out during the plaintiff’s opening had violated several rules in “disseminat- leading her.” Id. at 515. The plaintiff sued statement that contrary to what he had pre- ing client confidences” and “disseminat- for defamation. The defendants moved to viously informed his client, he had never ing case results in advertising without the dismiss, arguing that the various state- tried a case before. The judge declared required disclaimer.” Id. at 493. ments were “not susceptible of defamatory a mistrial, stating, on the record, “I was After an unsuccessful appeal, the attor- connotation” because they were pure opin- astonished that someone would purport to ney appealed to the Virginia Supreme ion, and in any event they were allegedly represent someone in a felony murder case Court, arguing on First Amendment fair and true reports of a judicial proceed- who had never tried a case before,” among grounds that the content contained in the ing. Id. at 521. other things. Id. Shortly afterward, articles blog entries was political speech, and there- In finding that each of the blog state- about the mistrial appeared in the Wash- fore it was not properly subjected to the ments withstood the dismissal motion, the ington Post, on the Reuters website, in an stricter standard of review imposed by the court emphasized that because of the for- ABA online publication, and most impor- bar (and the courts) for potentially violative mer attorney–client relationship between tantly here, on several law firm and attor- commercial speech. In denying the appeal, the parties, the statements were not neces- ney legal blogs, which, according to the the Virginia Supreme Court concluded sarily pure opinion and had “precise mean- court, depicted the mistrial “as an ‘object that the attorney’s blogs were what was, ings that are readily understood and are lesson’ for those unsuspecting clients that in essence, lawyer advertising, because capable of being true or false,” and they contemplate retention of inexperienced

62 ■ For The Defense ■ October 2016 defense counsel in criminal cases based Oct. 23, 2013), a New Jersey federal court entation, “unquestionably indicates and on low cost and exaggerated marketing.” considered similar issues, again with a expresses that an individual was, in fact, Id. The attorney plaintiff filed a defama- positive result for the attorney. In Perez, terminated from their employment with tion suit against the reporters and bloggers, the plaintiff was employed at a furniture [the furniture store] ‘for being Gay’.” Id. at alleging that the defendants had mischar- store from September 25, 2012, to October *13 (internal citations omitted). acterized his e-mail request to “trick” the 8, 2012, as a Human Resources director. Id. The court agreed with the law firm that witness and that the defendants had incor- at *3. During her time there, the plaintiff the claims should be dismissed, noting that rectly reported that the trial judge had reported to the company’s director of peo- the context of the blog post “show[ed] that declared a mistrial due to the plaintiff’s ple services and development and its chief it is not defamatory” because it “simply incompetence or inexperience. All the de- executive officer, who she claimed made fendants moved to dismiss the complaint, a number of derogatory racial and sexual based on the fair report privilege and that comments during her interview and her the alleged defamatory statements were subsequent employment there. Id. On Jan- So, again, while non-­actionable as expressions of pure opin- uary 17, 2013, the plaintiff, through her ion. Id. attorneys, filed a lawsuit against the store recognizing the inherent In finding that the defendant attorneys’ and its two executives, alleging that during blog entries fell under the First Amend- her employment she was treated discrimi- protections available to ment fair reporting privilege, the court natorily and harassed due to her sexual ori- stated that a comparison of blog reports entation and was retaliated against after a lawyer to report court and the e-mail requesting that the investi- she filed a complaint of discrimination in gator “trick” a witness “reveal[ed] that they violation of §1981 and the New Jersey Law proceedings fairly and are a substantially and contextually accu- Against Discrimination. Id. at *4. rate report” of the events that transpired at The defendants filed an answer to the accurately,… the court trial, even if the “precise words [we]re not original complaint along with a third-party exactly identical.” And though the “report- complaint against the law firm that rep- determined that these ing” of the facts did not “portray [the plain- resented the plaintiff in the employment tiff] in a positive light, and [the plaintiff] case, alleging, among other claims, def- protections only go so far. may wish to disavow or interpret them in a amation on the basis of five separately different way, the defendants were permit- published internet articles that appeared ted to publicly disseminate them as a report after the complaint was filed. Id. at *5, describe[d] the lawsuit filed by [the firm] of a judicial proceeding.” Id. The court also 9–10. The offending articles included a on behalf of [the plaintiff in the employ- noted that “the clear import of [the trial blog post on the firm’s blog.Id. at *5. The ment case].” Due to the fact that the firm court’s] rulings was to excuse [the plaintiff] blog, as described by the court, contained had, indeed, filed a lawsuit against the due to his lack of competence and inexperi- “self-­authored reports on developments in furniture store for firing the firm’s cli- ence to defend [his client] in a murder trial” employment law, and in particular, cases ent over her sexual orientation, this was a and that, in any event, “[while] the reported handled by [the firm].” Id. In the firm blog truthful statement and provided an abso- statements that [the plaintiff] was allegedly entry concerning the action, the author, lute defense to the defamation claim with not competent, inexperienced and unethi- one the firm’s attorneys, wrote a post enti- regard to the post itself. Id. The court also cal are [] operative words which may give tled “Fired for Being Gay” in which it was addressed the defendants’ argument that rise to defamation, [] said content was priv- noted that the firm had “filed an employ- because the statements had appeared on ileged under the Civil Right Law §74.” Id. ment discrimination case against [the fur- a law firm website, authored by a law- In further acknowledging that the blog niture store] for firing our client over her yer, that this, in some way, “heighten[ed] entries were also non-­actionable expres- sexual orientation” and that there had been the defamatory harm of those statements sions of opinion, the court opined that significant media interest in the case “due because the readers are more inclined to “[w]hen viewed from the broader social to the outrageous nature of the alleged con- perceive the contents of the statements as context, it is readily apparent that the on- duct and also because gay rights is becom- true.” In further confirming its dismissal, line commentary and posts on legal blogs ing a national issue.” Id. at *5. The firm the court found that the opposite was true: discussing [the plaintiff] were exchanges of filed a motion to dismiss the claims. The “[T]he context of the [“Fired for Being opinions between criminal defense lawyers defendants argued in opposition that the Gay”] Blog Post makes it clear to a reason- and other individuals” and that “the aver- firm’s blog post was defamatory because able reader that the statements within the age reader would view its assertions with the headline of the blog post, “Fired for Post describe disputed facts in a lawsuit,” some reservations… and treat its contents Being Gay,” “read in conjunction with” the and the court specifically noted that the as mere opinion rather than as a statement blog post’s first sentence, which stated that post simply referred to “the ‘alleged con- of fact.” Id. the firm had filed an employment discrim- duct’ of Third-Party Plaintiffs.”Id . As a In Perez v. Factory Direct of Secaucus, ination case against the furniture store for result, the court found that the post was LLC, 2013 U.S. Dist. Lexis 152407 (D.N.J. firing the firm’s client over her sexual ori- not defamatory. Id. at *13–14.

For The Defense ■ October 2016 ■ 63 PROFESSIONAL LIABILITY

A year later, in Dreamstone Entm’t Ltd. urative or hyperbolic language used and shown to have lied about the length of two v. Maysalward Inc., 2014 U.S. Dist. Lexis the reasonable expectations of the audi- Independent Medical Exams (IME) of the 116977 (C.D. Cal. Aug. 18, 2014), the plain- ence in the particular situation.’ Finally, plaintiff, conducted in conjunction with tiff alleged that the defendant breached courts ‘inquire whether the statement discovery in the case. Id. at *10–11. The a contract and committed various torts itself is sufficiently factual to be suscep- trial judge, upon finding out about a hidden by withholding accounting information, tible of being proved true or false.’ camera recording that impeached the doc- profits, and intellectual property relating Id. at *14–15 (internal citations omitted). tor’s testimony (purportedly showing that to a mobile video game. Id. at *4. Under The court opined that the press release the IME could not have been performed in the terms of the contract, the defendant was issued by the law firm representing the course of his very brief examination), was supposed to develop and distrib- the plaintiffs and counter-­defendants, apparently railed on about the doctor’s ute the game. The defendants counter- and republished on the law firm’s web- “lies” (up to 25 times in one day, according claimed, alleging that they were induced site and that as a result, it was clear that to the complaint), accusing Dr. Katz repeat- to develop the game through false repre- “the author is an interested party in con- edly, both on and off the record, of lying sentations that a film based on the concept tentious litigation, so that the audience and perjuring himself through his IME-­ of the game was in preproduction, that it would be unlikely to read the press release related testimony. Id. Yet, despite those was a “big production with well-known as a neutral statement of facts.” Id. at accusations of lying, and threatening Dr. actors, and that Defendants could not be *18. Thus, the court found that the broad Katz further, on the record, with forced paid because all of Plaintiffs’ resources context of the statement suggested that retirement, special proceedings, and con- were going into making same.” Id. at *4–5. the average reader would expect “a pre- tempt hearings, the trial judge took no fur- Among the counterclaims was a claim dictably one-sided account of the cir- ther action in the case against Dr. Katz. Id. for libel per se against the plaintiff’s law cumstances giving rise to the litigation” Subsequent to the trial proceedings, two of firm and its principal, based on an alleg- and therefore favored the plaintiffs and the defendant attorneys sued by Dr. Katz edly defamatory press release issued on counter-­defendants. Id. at *19. Further, later wrote blog posts about the underlying March 25, 2014, and posted on the firm’s the court opined that although the pas- trial for one of the attorney’s own personal website about the case, which included the sage appeared factual in isolation, “the injury attorney and case reporting blog. quotes “[The defendants] have maliciously press release as a whole makes clear that Those posts, and a subsequent e-mail writ- absconded with my clients’ valuable intel- [the attorney] was expressing his opin- ten by an attorney at one defendant firm, lectual property and hard earned money,” ion” by using “cautionary language like which was allegedly sent to “key members and “We will fight tooth and nail to ensure ‘[t]he federal suit accuses’ and ‘[t]he Com- of the insurance defense industry” and the game is restored on gaming platforms plaint contends that’,” which the court linked to other blog and blog posts, formed and [d]efendants pay every dime needed to said signaled that the release “contain[ed] the basis of the defamation action filed by rectify the damage done to my clients’ rep- allegations, not proven facts,” and due Dr. Katz. Id. at *10–11. utations and the [G]ame’s franchise.” Id. to its attribution, “a reasonable mind As in the cases above, the defendants at *6–7. The law firm and attorney moved would expect the statement to be one- moved to dismiss Dr. Katz’s complaint to dismiss the counterclaim for failure to sided and even hyperbolic.” Id. at *20–21. based on a failure to state a claim for def- state a claim. Thus the court found that the “totality of amation for any of the posts or e-mails, In agreeing with the law firm’s argu- the circumstances” favored the dismissal and the court agreed, noting that all of the ment that the allegedly libelous statement because the language appearing in the alleged statements in the blog posts and was non-­actionable opinion and grant- press release and on the website, describ- the e-mail were either privileged or non-­ ing the motion, the court noted that under ing the case, was non-­actionable opinion. actionable assertions of opinion. California law, to state a claim for defama- Id. at *21–22. At the outset of its opinion, the court tion, there must be “(a) a publication that A more recent New York Supreme Court noted that the majority of the statements is (b) false, (c) defamatory, and (d) unpriv- decision highlights the murky waters of that were alleged to be defamatory were ileged, and that (e) has a natural tendency fair reporting of decisions by lawyers and privileged under New York Civil Rights to injure or that causes special damage.” Id. firms, and when case reportingcould cross Law Section 74, known as New York’s fair at *14 (citation omitted). Regarding poten- the line into defamatory content. In the reporting privilege, which says that a “civil tially defamatory statements, the court action, Katz v. Lester Schwab Katz & Dwyer, action cannot be maintained against a explained how courts in the Ninth Circuit LLP, 2014 N.Y. Misc. Lexis 5362 (N.Y. Sup. [person or firm] for the publication of a fair evaluated the statements: Ct. Dec. 4, 2014), the plaintiff, Dr. Michael and true report of any judicial proceeding” First, courts ‘look at the statement in its Katz, sued two law firms and some of their and that because the blog posts were “sub- broad context, which includes the gen- attorneys individually for a series of blog stantially accurate.” Id. at *12–13. eral tenor of the entire work, the subject posts and an e-mail written by the defend- Indeed, the court’s side-by-side com- of the statements, the setting, and the ants, on their respective blogs, regarding a parison of the hearing transcripts and the format of the work.’ Next courts ‘turn to personal injury case in which Dr. Katz, who blog posts showed that the posts accu- the specific context and content of the had been retained by the defendants in the rately reflected the numerous disparaging statements, analyzing the extent of fig- underlying trial as a medical expert, was remarks made by the trial judge against

64 ■ For The Defense ■ October 2016 Dr. Katz. Id. For example, stating that Dr. chloride (PVC) pipe had been manufac- ing these manufacturing practices and the Katz was “busted for lying on the witness tured and tested in a manner that assured resulting product ‘shoddy’ [wa]s a fair char- stand” in the blog post was an accurate it had the strength and durability required acterization of the trial evidence. No rea- reflection of the trial judge’s repeated find- by applicable industry standards.” Id. Upon sonable reader would understand it to be ing on the record that Dr. Katz had lied. Id. becoming aware of the press release, the part of the jury’s verdict….” Id. Instead, the In any event, the court reasoned, the proper manufacturing company sued the law firm reasonable reader would understand it sim- inquiry was not whether the statements in for defamation and trade libel. Id. ply as a fair report of trial itself. the blog “reflect” a fair and true report, but While the trial court initially denied In sum, the court noted that while the if they were a true report of what occurred a motion to strike the complaint by the firm “may be guilty of self-­promotion and during the course of proceedings. Id. The firm, based on the argument that the press court found that the blogs did not “suggest release was privileged as a fair and true more serious conduct than what occurred” report of a judicial proceeding, the appel- in the judicial proceeding. Id. at *14. late court reversed. Id. at 91. In doing so, When you blog about Regarding the remaining alleged defam- the appellate court noted that defamation atory statements in the blog postings that under California law requires the “inten- work for your client, you fell outside the fair reporting privilege, the tional publication of a false statement of court noted, citing the seminal defamation fact that has a natural tendency to injure need to be cognizant of case Gross v. New York Times, that a state- the plaintiff’s reputation or that causes spe- ment of opinion that is accompanied by a cial damage.” Id. at 97. The appellate court the rules against disclosing recitation of the facts on which it is based, also noted that “whether a report of the or one that does not imply the existence of official proceedings itself is ‘fair and true,’ client confidences without undisclosed underlying facts, is also not provided [that] reasonable minds could dis- actionable because it is readily understood agree as to the effect of the communication the client’s consent. by the audience as conjecture. Id. at *16– on the average reader or listener, is a ques- 21. Further, because the statements were tion of fact for the jury.” Id. at 98. Further, made on the internet, the court, citing the appellate court stated that in measuring puffery,” its press release fell “within the the First Department decision in Sandals what constitutes “a ‘fair and true report’,” permissible degree of flexibility and liter- Resort Intl Inc. v. Google, Inc., also noted the defendant is “permit[ted] a certain ary license afforded communications to the that the defamatory import of the com- degree of flexibility/literary license,” going media concerning judicial proceedings,” it munications must be viewed in light of the on to say that “[i]f the substantial imputa- was a fair report, and thus it was privileged fact that blogs are often the “repository of a tions be proved true, a slight inaccuracy in under California law since the substance of wide range of casual, emotive, and impre- the details will not prevent a judgment for its reporting was accurate. Id. at 105. cise speech” to which its recipients “do not the defendant, if the inaccuracy does not necessarily attribute the same level of cre- change the complexion of the affair so as Conclusion dence” as they would to statements made to affect the reader of the article differently The benefits of blogging and sending “in other contexts.” Id. Thus, in dismissing than the actual truth would.” Id. at 99–100 out e-mail blasts to promote a law firm’s the case, the court found that all the state- (internal citations omitted). achievements, or otherwise bring attention ments made in the posts regarding any The appellate court then opined that to the firm, are readily apparent. However, potential legal fallout from the trial judge’s “the average reader of the entire three- this type of promotional activity carries statements regarding Dr. Katz were mere plus-page press release would reasonably risk. When you blog about work for your conjecture, and they did not portray facts understand [that] the release described the client, you need to be cognizant of the rules about Dr. Katz. Id. substantial evidence presented at trial” and against disclosing client confidences with- This decision appears to have affected “the specific findings of the jury”; further, out the client’s consent. When blogging the ruling by a California appellate court the court found that the plaintiff’s “attempt or otherwise reporting on case develop- that evidences just how the courts have to read the press release as inaccurately” ments, there is no question that there are adjusted to dealing with the issues sur- reporting what had transpired was “predi- substantial protections in place for expres- rounding this developing issue. In that cated on a strained construction of the lan- sions of opinion and fair reporting of court case, J-­M Manufacturing Co., Inc. v. Phil- guage used [in the release].” Id. at 101–102. proceedings. But care must still be taken lips & Cohen LLP, 247 Cal. App. 4th 87 Also challenged was the firm’s use of the to ensure that the facts are not teased or (Cal. Ct. App. 2016), the law firm defendant terms “shoddy manufacturing practices” twisted to make a blog more eye-­catching issued a press release after a favorable ver- and “shoddy pipe” in the press release to or promote readership. So if you are not dict in a False Claims Act litigation. Id. at describe the manufacturing practices at watching over what the lawyers in your 91. The verdict found that a manufactur- issue, but the court noted that “quotas cre- firm are blogging about, you may want to ing company had “knowingly misrepre- ated strong incentives to ship bad pipe” and start doing so. And if you are the blogger, sented to [the firm’s] governmental clients that the pipe had “fail[ed] to meet qual- as the saying goes, discretion can often be over a 10-year period that its polyvinyl ity standards.” Id. at 103. As such, “[l]abel- the better part of valor.

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