Need Ethics Advice?
As a State Bar member, you have access to informal guidance and help in resolving questions regarding Wisconsin’s Rules of Professional Conduct for Attorneys.
Ethics Hotline. To informally discuss an ethics question, contact the State Bar ethics counsel, Timothy Pierce or assistant ethics counsel, Aviva Kaiser. They can be reached at (608) 229-2017 or (800) 254-9154, Monday through Friday, 9 a.m to 4 p.m.
Question
Many lawyers write blogs about their law practices. Are there ethical traps that can arise when blogging?
Answer
Blogging has become a very popular activity for lawyers. Unfortunately, it also can be a trap that can result in problems. Blogging can be done without getting in trouble provided the lawyer is careful about the topics he or she writes about and care is taken to avoid certain types of commentary.
The biggest concern for a lawyer engaged in blogging is to avoid discussion of any information that could constitute a breach of the duty of confidentiality under SCR 20:1.6. A lawyer may not disclose any information relating to the representation of a client unless it is specifically authorized by the client or is impliedly authorized in order to provide for representation of the client and accomplish the goals of the representation that the client establishes.
Another major concern is a discussion about cases that a lawyer has handled or is handling and disclosing information that might identify a client, because it is highly unlikely that the blogging activity would be impliedly authorized to further the representation’s goals and objectives. This does not mean that lawyers cannot blog about legal issues and their experience with legal issues, but lawyers must be very careful that no information about particular clients is disclosed. Lawyers also must be careful to not disclose information that could result in someone readily identifying the client and determining the nature of the representation.
Another area of concern is the use of a blog to criticize a judge. Recently, the Indiana Supreme Court imposed a one-year suspension on an Indiana lawyer for criticizing a judge on the lawyer’s blog. The lawyer made statements about the court and claimed that a certain judge had “committed malfeasance” while making decisions about the status of an estate when the lawyer was representing one of the parties involved in litigation over the estate. The Indiana Supreme Court severely criticized the statements the lawyer made in his blog.
Wisconsin has a specific rule about statements made by a lawyer involving a judge. SCR 20:8.2 of the Wisconsin Rules of Professional Conduct provides as follows:
“(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, a judicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.”
This language, coupled with other rules such as SCR 20:8.4(c) regarding misrepresentation, make it very clear that a lawyer may not criticize a judge in most circumstances and doing so could result in significant sanctions. Lawyers must be very careful as to what they put in blog posts to ensure they do not violate the Rules of Professional Conduct.
