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The Evolution of Legal and Ethical Claims in the Age of Attorney Blogging

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The Evolution of Legal and Ethical Claims in the Age of Attorney Blogging 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.
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