In a recent blog post entitled “Blogging rules,” Mark W. Bennett, a Houston, Texas-based criminal defence lawyer, writes about the perils of blogging (or “blawging”) about your client’s cases and concludes:
“If writing about an ongoing case won’t hurt any clients, ask yourself: do you have to do it right now, or can it wait until the case is closed? If it can wait, let it.
“If it can’t wait, it’s a good idea to ask yourself why, and probably to have someone you trust read the post to make sure it’s really such a good idea —sometimes the need to vent can short-circuit reason, and we all can use a second opinion from time to time.
“There are lots of reasons — egotistic, altruistic, avaricious, or therapeutic —that lawyers blog. None of them trump the best interest of our clients. Very rarely will writing about an ongoing case be in that interest.” [emphasis added]
My own blawging rules resemble those of Scott Greenfield, a New York-based criminal defence lawyer and author of the Simple Justice blog: My client owns the case; I merely work on it. Confidentiality and privilege reside solely with the client. Period.
Having said as much, there often are times when I want to write about one of my former or ongoing cases, given that discussing them may promote public understanding or improve equal access to justice. Lawyers, after all, have a duty to the client first, but also a duty to the profession and the public as well.
If the reason you are blawging about your case is “egoistic, avaricious or therapeutic”, then follow the “TMI” rule: too much information. Even altruism is egotistical if the rationale behind disclosing confidential information for the greater good belies poor judgment. The aphorism “the road to hell is paved with good intentions” comes to mind.
While the wording of the American Bar Association’s Model Rules or various American state bar rules of professional conduct differ from the Canadian Bar Association’s Model Rules or various provincial law society versions, they all share one fundamental rule in common: confidentiality as the cornerstone of the attorney-client relationship.
In Ontario, the principle of confidentiality is codified in Rule 2.03 of the Law Society of Upper Canada’s Rules of Professional Conduct, which includes the statement: “The ethical rule is wider and applies without regard to the nature or source of the information or the fact that others may share the knowledge. A lawyer owes the duty of confidentiality to every client without exception and whether or not the client is a continuing or casual client. The duty survives the professional relationship and continues indefinitely after the lawyer has ceased to act for the client, whether or not differences have arisen between them . . .”
The prohibition against “cocktail party gossip” is often lost on many. As the LSUC commentary further notes: “A lawyer should avoid indiscreet conversations, even with the lawyer’s spouse or family, about a client’s affairs and should shun any gossip about such things even though the client is not named or otherwise identified. Similarly, a lawyer should not repeat any gossip or information about the client’s business or affairs that is overheard or recounted to the lawyer. Apart altogether from ethical considerations or questions of good taste, indiscreet shop-talk between lawyers, if overheard by third parties able to identify the matter being discussed, could result in prejudice to the client. Moreover, the respect of the listener for lawyers and the legal profession will probably be lessened.”
While there is a recognized exception of disclosing information within public knowledge (i.e. pleadings), the overriding duty is to protect the client’s right of confidentiality.
Beyond the general rule of confidentiality, lawyers owe a duty to the public expressed in the form of the LSUC’s Rule 4.06 on encouraging respect for the administration of justice: “A lawyer shall encourage public respect for and try to improve the administration of justice.”
From a blawger’s perspective, as a practising lawyer, the mere fact that you choose to write a personal blawg, rather than a firm marketing blawg, in no way exempts you from this ethical obligation. In fact, the privilege of membership in the legal profession carries with it heightened duties of honour and respect for the rule of law and its institutions, on the one hand, and promoting the interests of equal access to justice, on the other.
As the LSUC commentary notes: “A lawyer’s responsibilities are greater than those of a private citizen. A lawyer should take care not to weaken or destroy public confidence in legal institutions or authorities by irresponsible allegations. The lawyer in public life should be particularly careful in this regard because the mere fact of being a lawyer will lend weight and credibility to public statements. Yet for the same reason, a lawyer should not hesitate to speak out against an injustice. The admission to and continuance in the practice of law implies on the part of a lawyer a basic commitment to the concept of equal justice for all within an open, ordered, and impartial system.”
The guiding principles of civility and sound judgment will always offer a clear path to discharging one’s duties to the client, the legal profession, and the public, generally. Nevertheless, consider that blawging and online comments fall under Rule 6.06 on communicating with the public: “Provided that there is no infringement of the lawyer’s obligations to the client, the profession, the courts, or the administration of justice, a lawyer may communicate information to the media and may make public appearances and statements.”
As the LSUC commentary points out: “Dealings with the media are simply an extension of the lawyer’s conduct in a professional capacity. The mere fact that a lawyer’s appearance is outside of a courtroom, a tribunal, or the lawyer’s office does not excuse conduct that would otherwise be considered improper. A lawyer’s duty to the client demands that, before making a public statement concerning the client’s affairs, the lawyer must first be satisfied that any communication is in the best interests of the client and within the scope of the retainer. Public communications about a client’s affairs should not be used for the purpose of publicizing the lawyer and should be free from any suggestion that the lawyer’s real purpose is self-promotion or self-aggrandizement.”
In the end, ask yourself this question: “Why am I writing this blawg post about my client’s case?” If the answer is ego-fulfilment, self-promotion, or catharsis; stop typing and delete the post. Even if your reasons are altruistic, get your client’s express consent first and then save your draft and post after the final judgment is rendered and all appeals are exhausted.
Antonin I. Pribetic is litigation counsel at Steinberg Morton Hope & Israel LLP, and a sessional lecturer at UTM-Rotman School of Management’s diploma in investigative and forensic accounting program and author of the Trial Warrior Blog.
