Wednesday, September 19, 2007

ABA CLE on grog -- er, blogs

Tomorrow the ABA will have an interesting teleconference and live audio webcast: Blogging: Ethical Considerations for the Lawyer, Legal Implications for the Client. Details are available here. Here's the program description:

The advent of blogs has affected the legal profession on all fronts. From a business development perspective, there is a hazy intersection between legal commentary and law firm marketing. In practice, clients are often faced with issues ranging from malicious posts from disgruntled customers and competitors, to striking a balance between an employee’s freedom of expression, and inappropriate remarks that might be identified as that of the employer.

This program will look at the development, content, and marketing of lawyer blogs, including appropriate topics, ideas for posts, participation in blogging communities, and optimizing blogs for search engines. Ethical considerations in regard to the rules of professional responsibility will be examined, with specific focus on Sections 7.1-7.5 of the ABA Model Rules of Professional Conduct.

In addition, the program will address:

Business advantages to blogging
Using a blog to complement other law firm business initiatives
Understanding legal issues related to blogging that are affecting your clients

I wish I could participate, but I have a day job and the conference runs from 1300 to 1430 East Coast time. The good news is that two weeks after the conference, a recording will be available for purchase.

Speaking of my day job, I am reevaluating my participation on this blog because I now practice before two of the courts whose case law we routinely discuss. Is the duty of loyalty to one's client likely to result in circumscribed candor when discussing cases? What are the ethics of discussing one's own cases on a blog? You may remember that back in March, one anonymous commentator argued:
This blog seems to constantly use the bait and switch approach to swooningly praise these Navy and Marine (and Court of Appeals) judges and wax over the statistical unlikelihood that the judges are reading this site for routine rulings, then throwing topics in front of the judges that are constantly under their consideration and which you wish would be found more frequently in your favor. Doesn't this verge dangerously close to attempting to influence the judges and also near the ABA Model Rule 3.5 ex parte communications (even if the cases aren't ongoing, there must be motions for oral argument that you all are frustrated over?).

At the time, I was able to respond: "I haven't practiced before either NMCCA or CAAF since 2003, so I don't think I could engage in 'ex parte' communication as that term is typically used." But now I do practice in front of military courts. The other day Sacramentum discussed a case on which I'm currently working. I disagreed with Sacramentum's take on the case (I know, shocking!), but I haven't posted about it due to a certain unease over writing publicly about an on-going case in which I am a counsel.

I'll be very interested to hear (in two weeks) whether the participants in tomorrow's teleconference address these and similar topics. Do any of you have advice?


John O'Connor said...

It seems to me that there are two elements to your question: (1) would it be unethical or improper in some way to post about decisions by courts before which you practice because it might give you a greater voice with judges who actually read your blog; and (2) is it potentially harmful for your clients for you to do so because you might irritate judges before whom you will practice.

Taking the first question first, I don't see operating a blog that is open to the general public as being an ex parte communication or giving you an unfair litigation advantage any more than it would be an unfair litigation advantage for me to write a law review article on an issue I am or will be litigating. Anyone can post their thoughts so your "advantage" (to the extent there is one) is no more than that available to any other litigant.

On the second question, I guess each person has to judge for themselves whether there is a risk that they could get on the bad side of judges by critiquing their work. I always believed that judges generally could take it, particularly in the military context (where most of the judges seemed less full of themselves, and much, much more accessible to counsel, than a lot of judges you might meet elsewhere).

When I was a TC, we used to make fun of the MJs to their face all the time (in an arguably respectful way). I remember shooting the bull with an MJ and a couple of counsel between cases once and the MJ was trying to make some point and said something like "so say that I sentence that guy to sixty days . . . ." Having been slightly aggrieved by this MJ's sentencing practices in the past, I interjected, "what, would that be a murder case." And everyone just laughed and moved on. I suspect most of the judges before whom you will practice either won't read what you write here, or won't care what you write here, or will take what you write here either as a professional exchange or in good humor. But that's a judgment you'll have to make yourself based on the personalities of the judges involved.

Just don't give the car keys to No Man under any circumstances.

Jason Grover said...

I have to agree with JO'C. First, I cannot imagine a judge basing his or her decision on anything other than the law and the pleadings. Second, this is very much a modern law review format - just as you have pointed out, much more lazy.

For your comfort level, you could avoid discussing your cases currently pending. For example, I am still counsel on United States v. Walker, one of the Marine Corps death-penalty cases. I have not posted much regarding that particular case. Now that may be harder when you work on more than one case, but I suspect there will be plenty of cases and issues that you can discuss. But even avoiding your own cases probably isn't necessary for the reasons JO'C points out. The purpose of this blog is a general discussion. We have never directed it at the judiciary or specifically invited the judiciary (just the ex-judiciary, Judge Mathews).

And consider the alternative. As JO'C points out, we might be discussing Apprendi and Article 2 every day if No Man steps up (by the way, how does he have enough time to do that, doesn't he work at big, fancy law firm?). The blog is also extremely helpful to introduce junior counsel into some interesting layers of military justice.

As far as JO'C's second point, your mere existence may already irritate some judges you practice in front of. Your previously published law reviews or many speeches may have already done that. I cannot imagine your comments in the public forum could do any more damage. Those that would be irritated are already irritated. But again, they are all professionals and I cannot for a moment believe that senior officer or civilian judge would alter their analysis of the case based on their like or dislike of counsel. Sure they are all human and they may be subconscious factors at play, but they probably balance out. On a 3 judge panel, one might be irritated, one amused, and one clueless that you or this blog exists. Although impossible to measure, I cannot logical see how your participation in this blog would hurt your clients.

And lastly, although I am sure you have already considered this, have you sought an ethics opinion? You once taught me how to do that.

Lastly, we haven't even broken in our CAAFlog tee-shirts.

CAAFlog said...

My concern wasn't with irritating judges. I agree that no judge in the military appellate system would rule against a client because the lawyer had previous blasted an opinion by the judge. My concern is more one of candor. Let me give you an example. Let's say that the Air Force Court of Criminal Appeals publishes a brilliant opinion ruling for the government. One of my colleagues will likely seek further review of that decision. Now in the past, I might have been inclined to write extolling the virtues of that opinion. But wouldn't doing that now violate my duty of loyalty to my office's client? And if I'm limited in that way, is anything I write still useful because I'm filtering out some of my true opinions?

My initial thought when I returned to the practice of military appellate law was to stop writing on this blog. But then I thought that soome of the nice folks who bring us SCOTUSblog practice in front of the Supreme Court but still write about it. Heck, they even sometimes promote their own cert petitions on their blog, but always with disclosure.

May a Sgt Joe Friday "Just the Facts" approach is best. Obviously I'm still wrestling with this.

Anonymous said...

Ahoy. As long as you don't violate your oath to your client, you shouldn't have any ethical concerns with your commentary. Fire away, matey.

Jason Grover said...

I think SCOTUSblog is a great, and well-respected, example to follow.

Love your appreciation of Pirate Day.

John O'Connor said...

Caaflog says:

"Let me give you an example. Let's say that the Air Force Court of Criminal Appeals publishes a brilliant opinion ruling for the government. One of my colleagues will likely seek further review of that decision. Now in the past, I might have been inclined to write extolling the virtues of that opinion."

JO'C says:

"You might extol the virtues of a pro-government decision? Har-dee-harr-harr."

You should be walkin' the plank for making that ridiculous suggestion.

John O'Connor said...

And another thing. How come when anybody agrees with me on this blog, they phrase it that they "have to agree with JO'C," or similar language, as if to suggest it is paining them to do so?

And, Jason, we'll investigate No man's use of his time. Thanks for the reminder.

Jason Grover said...

Didn't mean to convey pain. Don't allow my poor wording to suggest a dislike of my agreement with you.

John O'Connor said...

I was just kidding, Jason. Guert used the same phraseology the other day.

No Man said...

I am on vacation and getting bashed all the while. Now I know how JOC feels. Don't worry about the keys to the kingdom being turned over. I am far less insightful than our fearless CAAFlog . . . And I already have a spare set.

CAAFlog said...

I had another thought about the ethics of blogging. SCOTUSblog has a recurring feature in which it lists cert petitions that have legs. Do all of the cert petitions filed by the author make the list? If not, is it inconsistent with a counsel's duty of loyalty to leave one client's case off the list while including another? If so, does that mean that its author files cert petitions only in compelling cases, or is there reason to doubt the list's objectivity? This blogging business may be trickier than it seems! (Perhaps today's ABA CLE on blogging addressed that issue. Did anyone have a chance to listen in?)

Christopher Mathews said...

I find myself torn between my new obligations as a contributor to CAAFlog and my prior obligation to preserve the confidences of my former colleagues on the bench. I think I can balance both by simply saying that I don't recall any impact from my designation as "the Great" by this blog prior to my retirement, other than a couple of derisive snorts at the next Thursday morning breakfast. I think you're safe to keep on blogging.

As John O’Connor points out, there is nothing ex parte or otherwise improper about a law review article concerning a current legal topic. Often, these articles are written with the explicit intent of influencing the way trial attorneys apply the law. Given the number of times law review articles wind up being cited in decisions, it’s fair to say that such articles influence the way judges apply the law, too. A well-reasoned blog entry may be similarly influential, but I’d argue that they are more fair, not less.

By way of example: the Air Force's quarterly JAG Corps publication, The Reporter, has occasionally included articles from active military justice practitioners on developments in the law. In September 2000, it published an article co-authored by then-Captain John Hartsell (now the Deputy Chief Trial Judge of the Air Force) and myself entitled "Impeaching a Silent Accused." The article described the implications of the decision in United States v. Goldwire, 52 M.J. 731 (A.F. Ct. Crim. App. 1999), and urged prosecutors to rely on Goldwire when appropriate. A few months later, Colonel Jim Wise, who was then the Chief of the Air Force's Appellate Defense Division (and is now the AFCCA Chief Judge) authored his "Rebuttal to 'Impeaching a Silent Accused'," warning that Goldwire was pending appeal before CAAF, and that trial counsel who relied on the CCA decision “have set up their cases for reversal.”

Both articles were explicitly intended to influence trial counsel. I think it’s fair to say that either could have influenced a sitting military judge considering a similar evidentiary issue. The first article went unrebutted for six months, and Colonel Wise’s rebuttal went unanswered until CAAF settled the question by affirming Goldwire. Either piece had a greater potential for one-sided impact than a post in a blog, which can be (and probably will be) challenged minutes after it first appears.