Too Much Information: Blogging about your client’s case

In his post today, Blogging Rules, Mark W. Bennett refers to D.A. Confidential’s  take on blogging for prosecutors and offers his own thoughtful perspective as a criminal defense lawyer and blawger: 
  • “Do not write about ongoing cases. If I want to draw attention to one of my cases, say it’s going to trial, then I let people know it’s going to trial and I post a link to a news story about the case, without commenting on the facts myself. This can be tough because I’d love to blog about what happened last week, I’ve been asked to do so, but I’m going to put some time between the event and my account of it.
  • Do not generate, encourage, or participate in topics of controversy. Thus you won’t find discussions about the death penalty, immigration, drug policy, or the Dallas Cowboys here.
  • Treat everyone with respect. If I have a funny case where someone did something silly, or said something amusing, I will never tell you about it to humiliate that person and so won’t identify them. We see so many funny things in court it’s tempting to give every last detail but I try to be more respectful than that. The one time I will name someone is if they have done a really good job and warrant some attention. 

The third is a good rule for prosecutors and for anonymous bloggers; in the real world, however, when some types of people (generally 1. elected officials; 2. people running for office; and 3. others deliberately acting in the public eye) screw up, there is value in discussing it.

The second may be a good rule for prosecutors; often, though, topics of controversy need discussing, and those of us not whose speech is not bound by bureaucratic rules might as well discuss them.

The first is an excellent rule for everyone. Do not write about your ongoing cases.”

My own blawg rules  resemble Scott Greenfield’s: 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.
Bennett 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]

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 ABA Model Rules or various American state bar rules of professional conduct differ from CBA 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, this principle is codified in Rule 2.03 of the Law Society of Upper Canada’s (LSUC) Rules of Professional Conduct (RPC), which reads:

Confidential Information
2.03 (1) A lawyer at all times shall hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship and shall not divulge any such information unless expressly or impliedly authorized by the client or required by law to do so.

The LSUC Commentary also adds that:

“… A lawyer cannot render effective professional service to the client unless there is full and unreserved communication between them. At the same time, the client must feel completely secure and entitled to proceed on the basis that, without any express request or stipulation on the client’s part, matters disclosed to or discussed with the lawyer will be held in strict confidence. This rule must be distinguished from the evidentiary rule of lawyer and client privilege concerning oral or documentary communications passing between the client and the lawyer. 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...” [emphasis added]

The prohibition against “cocktail party gossip” is often lost on many. As the LSUC Commentary further notes,

“…Generally, the lawyer should not disclose having been consulted or retained by a particular person about a particular matter unless the nature of the matter requires such disclosure. A lawyer should take care to avoid disclosure to one client of confidential information concerning or received from another client and should decline employment that might require such disclosure. 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.“[emphasis added] 

While there is a recognized exception of disclosing information within public knowledge (e.g. 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 Rule 4.06 of the LSUC RCP which reads: 

Encouraging Respect for the Administration of Justice
4.06 (1) A lawyer shall encourage public respect for and try to improve the administration of justice. 

From a blawger’s perspective, as a practicing 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 a 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. However, judicial institutions will not function effectively unless they command the respect of the public, and because of changes in human affairs and imperfections in human institutions, constant efforts must be made to improve the administration of justice and thereby maintain public respect for it. [emphasis added]

The guiding principles of civility and sound judgment will always offer a clear path to disharging 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 of the LSUC RCP:

Communication with the Public
6.06 (1) 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.   [emphasis added]

In the end, ask yourself this question: why am I writing this blawg post about my client’s case? If the answer is ego-fulfillment, 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.

2 Responses to “Too Much Information: Blogging about your client’s case”

  1. Chris Jaglowitz @ Ontario Condo Law Blog Says:

    Very useful. I've grappled with this topic previously and still do from time to time, so I'm grateful to see such a succinct and focused post containing the applicable authorities and considerations in one handy place.At the very least, this should be mandatory reading at the Bar Admission course.Thanks, Antonin! Keep up the good work.

  2. Anonymous Says:

    As a consumer of legal services, I would be more comfortable if consulting with the client on public communications was made more explicitly a condition in the rules. I would add to Mark Bennett's entreaty that in the instance where public communication in a pending case seems warranted, the client read the blog post first, yes, read it and be consulted and give permission. Also, the Canadian rules regarding cocktail parties and gossip overlooks one scenario and the general ethic emanating from it. To quote: "…if overheard by third parties able to identify the matter being discussed, could result in prejudice to the client." Take as a scenario the client who works with lawyers, is exposed to lawyers extensively in his work. The problem isn't that the gossip then might be overheard, the client is potentially damaged solely by the gossip happening at all. This is his sphere, the legal profession. Taking that to a more general understanding, the fact is, we all share a larger sphere. We are all sharing in a society that clients and lawyers are a part of. Rule or no, therefore, supposedly discreet gossip can be damaging. I know of a case similar to this that was ruinous for the client because of horribly uncivilized, arrogant lawyers with very poor judgment who tended to be disrespectful of clients generally, and who engaged in supposedly confidential talk about the client. It was no secret.

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