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Do We Need Ethics Rules on Ex Parte Blogging?

With postings on legal blogs now offering prompt, detailed and readily accessible analysis of Supreme Court cases, is it time to re-evaluate the ethical standards that govern the interplay between lawyers, the Internet, and the Court? That's the money question considered by Rachel Lee in this fascinating Stanford Law Review article, Ex Parte Blogging: the Legal Ethics of Supreme Court Advocacy in an Internet Era. (H/T Howard Bashman, How Appealing).

Lee begins her piece by revisiting the events following the Supreme Court's decision in Kennedy v. Louisiana regarding the constitutionality of the death penalty for child rape. As we reported, legal blogger Dwight Sullivan pointed out that the Court had gotten its facts wrong in stating that Congress had chosen not to make child rape a capital offense, when in reality, in 2006, Congress amended the Uniform Code of Military Justice to add child rape to the military death penalty. When the omission was revealed, the State of Louisiana sought rehearing, arguing that the new information undermined the Court's conclusion that the death penalty for child rape was unconstitutional. Ultimately, the Court affirmed its decision, with Justice Kennedy writing that military law was not relevant to its conclusion.

As Lee points out, Kennedy v. Louisiana represents the first time that a Supreme Court decision has been impacted by a blogger's "micro-discovery" of a factual error that would otherwise have gone unnoticed. Lee predicts that as blogging gains force, this trend will become more common, which prompts her to ask:

What does it mean for advocates and the Court to have an array of case- specific legal analyses a mouse-click away?

Lee has concerns about the potential for bloggers to impact the outcome of a case. She even suggests that advocates may go so far as to "game" a case, by writing publicly about it in a blog to spur the Court to grant cert or rule a particular way. Because Lee believes that bloggers could impact the outcome of a case, she argues that the legal profession should consider regulating ex parte blogging, despite the positive benefits -- e.g., discovery of errors and stimulating public debate -- that blogging brings to the table. Thus, Lee concludes:

Ideally, the members of the Court and their staff would refrain from reading any blog post relating to a pending case, whether written by attorneys involved in the case or not. If attorneys could rely on the Justices' self-restraint, it would allow the profession to have the best of both worlds. Lawyers could speak out as they saw fit, enriching the public dialogue without danger of tainting the judicial process. Alternatively, if attorney conduct were regulated to prevent lawyers from engaging in ex parte blogging, while the Court also avoided the material, judicial self-regulation would provide another layer of protection for the impartiality of the Court’s decision-making process. However, the legal community is not in a position to bring about either scenario—the Court alone has the power to regulate itself. Thus, it becomes attractive for the profession to attempt to exert control over attorneys’ blogging, despite the costs and difficulties of regulating their online conduct. A rule to prohibit ex parte blogging by attorneys would need to be carefully drafted to restrict its scope to the set of truly problematic statements, but this is not an impossible task. Given that it would level the playing field between different types of litigants, foster public confidence in our justice system, and protect the integrity of the Court’s decisions, it would be a worthwhile task. However, it is also not one to be lightly undertaken, as ex parte blogging sits at the delicate intersection of competing concerns regarding free speech, effective service to clients, and the fair administration of justice. There are difficult choices to be made, but the phenomenon of ex parte blogging raises serious ethical issues that must be considered by the legal community. This Note offers a starting point for the necessary conversation.

Lee's note provides a service in alerting the profession to the potential impacts of blogging. But beyond that, I see no reason for regulation. Current ethics rules prohibit lawyers from trying to influence the judicial process so lawyers should not be blogging about ongoing cases for that reason. Moreover, because blogging is public, opponents have an opportunity to file comments in response. Blogging about a case, even one in which a lawyer is involved, is therefore, far different from conveying an opinion about it to the judge in closed chambers. As for lawyers who blog about matters with which they are not affiliated, restricting their ability to blog would give rise to serious First Amendment consequences. 

Finally, if we prohibit judges from reading blogs about ongoing cases, why not bar them from reading newspaper articles or watching TV as well. Thus far, we trust judges to have the ability to filter out opinions from external sources, which is why the traditional bar on jurors' ability to read the newspaper or watch television doesn't apply to judges. Why treat blogs differently?

Posted by Carolyn Elefant on May 7, 2009 at 02:40 PM | Permalink | Comments (5)


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