Ethics in Online Speech

Stritmatter Continuing Legal Education Ethics in Online Speech presented by Andrew Ackley Introduction Horace Hunter had a blog. A criminal defense attorney in Richmond, VA, Mr. Hunter blogged about a myriad of legal issues and cases, mostly about his case successes. The Virginia State Bar (“VSB”) charged him with several ethics violations, including violations of client confidentiality—for publishing without client consent—and misleading advertising. Hunter v. Virginia State Bar, 285 Va. 485, 492-93 (Sup. Ct. Va. 2013). Mr. Hunter claimed he had many reasons for his blog, including both marketing and justice system-related content—combatting the public’s presumption of guilt. Id. at 492. He believed that using the client’s name in the blogs was important to give an accurate description of what happened, which was all public information. Id. at 493.

Following a hearing, the VSB admonished him, and required that he post a disclaimer. Hunter, 285 Va. at 493. Mr. Hunter appealed all the way to the Virginia Supreme Court, claiming that the VSB’s application of confidentiality rules violated his First Amendment rights.

The Court found that the blog posts constituted commercial—and not political— speech. Hunter, 285 Va. at 499. It found that VSB requirements of a disclaimer, to avoid misleading advertising, served a substantial government interest, and did not violate Mr. Hunter’s rights. Id. at 500-501.

Confidentiality was a different story. Particularly as to proceedings that have ended, the Virginia Supreme Court ruled that lawyers have a constitutional right to discuss public information on closed cases. Hunter, 285 Va. at 503. It reasoned in part, “What transpires in the court room is public property,” id. at 502. Thus, “a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom.”

Id. at 503.

The internet has made lawyer speech more prevalent and impactful than ever.

Courts and state bar associations are generally catching up at the speed of common law, sometimes leaving little specific guidance in the meantime.

This CLE discusses extrajudicial speech about cases, subject to the duties of confidentiality (RPC 1.6) and trial publicity (RPC 3.6), and faithful communications about

lawyer services (RPC 7.1). As courts and comments to the ethics rules acknowledge, there is a difficult public policy balancing act between an open court system and the integrity of its process.

Constitutional Guarantees of Open Courts The public’s right to open courts in Washington is constitutionally sacrosanct.

General Rule 15(c)(2) allows a court to seal or redact court records only “if the court makes and enters written findings that the specific sealing or redaction is justified by identified compelling privacy or safety concerns that outweigh the public interest in access to the court record.” This rule is rooted in the Washington State Constitution and public policy established over decades of case law, usually in the context of protective orders.

In Seattle Times v. Ishikawa, 97 Wn.2d 30, 37-39, 640 P.2d 716 (1982), our Supreme Court set out the procedural requirements for a confidentiality protective order, including: 1. The proponent of confidentiality must “state the interests or rights which give rise to that need as specifically as possible without endangering those interests.”

2. The Court and parties must “carefully analyze whether the requested method of curtailing access” to a public proceeding “would be both the least restrictive means available and effective in protecting the interests threatened”; 3. The Court must weigh competing interests of the litigant and the public, and must consider alternative methods; and 4. The order must be no broader in its application or duration than necessary to serve the legitimate purpose.

This approach has been adopted in civil cases. See, e.g., Dreiling v. Jain, 151 Wn.2d 900, 93 P.3d 861 (2004); Bennett v. Smith Bundy Berman Britton, PS, 176 Wn.2d 303, 291 P.3d 886 (2013). Satisfaction of GR 15 alone is not sufficient. State v. Waldon, 148 Wn. App. 952, 202 P.3d 325 (2009).

In addition, conclusory or vague assertions of harm will not suffice: Given our open court jurisprudence, and our requirement of particularized findings, the better practice for trial courts is to require every request for the sealing of documents for good cause to be accompanied by a document log identifying each document by number. For each document, the log should state the basis for protection and interest sought to be protected and identify support for assertions in the record. The log should also include a statement as to why redaction or other less restrictive measures than sealing will not protect the interest.

Bennett v. Smith Bundy, 176 Wn.2d 303, 314, 291 P.3d 886 (2013). See also Indigo Real Estate Services v. Rousey, 151 Wn. App. 941, 948-53, 215 P.3d 977 (2009).

Only if the moving party meets this heavy burden does the Court have the discretion to “identify and weigh the comparative public and private interests” regarding a need for protective order. Doe, 117 Wn.2d at 778. Even then, the exercise of discretion should err on the side of full disclosure without any restriction or protection due to the overriding constitutional interest of open access to the courts: [P]laintiff’s right of access to the courts and his concomitant right of discovery must be accorded a high priority in weighing the respective interests of the parties in litigation.

Doe, 117 Wn.2d at 783.1 Washington courts clearly hold the public’s right to legal proceedings in high regard. But lawyers have a paramount duty of confidentiality to the client.

Under RPC 1.6, lawyers are prohibited from revealing “information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation…”

The question is, what is “information relating to the representation” anyway?

Comment 21 provides guidance: The phrase “information relating to the representation should be interpreted broadly. The ‘information’ protected by this Rule includes, but is not necessarily limited to, confidences [protected by attorney-client privilege] and secrets [matters client requested be held inviolate].”

Comment 21 also includes as “secrets” information “the disclosure of which would be embarrassing or would be likely to be detrimental to the client.” This is similar to the Rule 1.6 language in Hunter, where the Virginia Supreme Court ruled that it violated the First Amendment if applied to public information.

I am not aware of any similar ethics decision—one way or the other—in Washington. But a couple similar points have been addressed in our courts. First, the identity of clients and parties, and description of the nature of a matter, will typically not constitute a confidence or secret. See State v. Sheppard, 52 Wn. App. 707, 703-14, 763 P.2d 1232 (1988); Ethics Advisory Opinion 2104. Second, lawyers in Washington are protected by the fair report privilege to accurately describe the substance of their own public proceedings: Washington courts have not expressly decided whether the fair report privilege is applicable to parties other than traditional news media.

However, as we discuss above, Washington has long recognized a strong public interest in having access to public proceedings, including a constitutional mandate for the open administration of justice. As such, 1 “[I]n the balancing of the harm to legitimate secrecy interests in granting access to the protective materials against the strong traditional public interest and open records, the presumption favors the latter.” Kerasotes Mich Cedars, Inc., v. National Amusements, Inc., 139 F.R.D. 102, 104 (E.D. Mich. 1991).

neither the type of media nor entity republishing reports of official public proceedings is relevant to determining whether the fair report privilege applies. We hold that the fair report privilege applies to news media and other types of media, including websites, webpages, and blogs, reporting on official public proceedings, including judicial proceedings…

McNamara v. Koehler, 5 Wn. App. 2d. 708, 716, 439, P.3d 6 (Div. 1 2018). As the Virginia Supreme Court in Hunter alludes, given the public policy in favor of open courts, it makes little sense that a lawyer involved in the proceedings—in the best position to accurately describe the substance and meaning of the proceedings—would be prohibited from reporting on them.

There is a limit, however. The Virginia Supreme Court in Hunter emphasized on the one hand the societal significance of public proceedings, and on the other hand the fact that Hunter’s blogs referred to cases that had ended. In other words, Hunter was speaking to public issues without the possibility of affecting the integrity of the judicial system.

Integrity of Judicial Proceedings Our Rules of Professional Conduct recognize that some extrajudicial speech is acceptable, or even expected. But they prescribe weighty considerations in close connection with any trial.

Rule 3.6—Trial Publicity, recognizes both the danger of trial publicity and the public nature of the proceedings. It generally tracks with the fair report privilege—to accurately summarize judicial proceedings—but adds special considerations as to the substance and timing of publicity.

The rule provides: A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

Then there are significant exceptions, in relevant part as follows: (b) Notwithstanding paragraph (a), a lawyer may state: (1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved; (2) information contained in a public record;2 (3) that an investigation of a matter is in progress; 2 A word of caution: while the public record is generally fair game, protections can be attacked on the grounds that the public record was made for an improper purpose.

(4) the scheduling or result of any step in litigation; Note that Comment 4 provides, “Paragraph (b) is not intended to be an exhaustive list.”

The very first sentence of the comments acknowledges the competing interests involved: “It is difficult to strike a balance between protecting the right to a fair trial and safeguarding the right of free expression.” Comment 1 discusses the importance of public access to legal proceedings and the fairness of the legal proceedings themselves.

Comment 5 identifies several “subjects that are more likely than not to have a material prejudicial effect on a proceeding,” including inter alia the character and credibility of witnesses, and information that “the lawyer knows or reasonably should know is likely to be inadmissible… and that would … create a substantial risk of prejudicing an impartial trial.” Note that Comment 5 tracks with RPC 3.4 regarding fairness to litigants.

Rule 3.6 also differentiates between types of cases: “Criminal jury trials will be most sensitive to extrajudicial speech. Civil trials may be less sensitive.” And, “The Rule will still place limitations on prejudicial comments in these cases, but the likelihood of prejudice may be different depending on the type of proceeding.” Comment 6.

Comment 9 refers to the Appendix Guidelines for Applying RPC 3.6. The Appendix provides a long list of information in the criminal context, and a single line of guidance in the civil arena: “The kind of statement referred to in Rule 3.6 which may potential prejudice civil matters triable to a jury is a statement designed to influence the jury or to detract from the impartiality of the proceedings.”

What does this all mean? There is at least one example to narrow it. The WSBA Office of Disciplinary Counsel recently admonished Pierce County Prosecutor Mark Lindquist, who had discussed a murder case on “Nancy Grace” twice. The ODC concluded that Mr. Lindquist’s commentary “contained inferences he made that went beyond facts contained in the public record,” and seems to emphasize that Mr. Lindquist’s second appearance on the show during trial was especially problematic under RPC 3.6.

At a minimum, we know that doing media during a criminal trial on topics not in the public record is bad. But what about civil cases?

Civil cases typically generate media attention at the beginning—filing a complaint —and during trial. At the beginning of a case, I believe that extrajudicial speech, guided

by RPC 3.6, is acceptable and in some cases important. Reporters often review new filings for newsworthy pleadings. Any complaint about an incident reported at the time it happened is potentially newsworthy. The reporters range from amateur bloggers to local or national news outlets. If you get a call from a new or low level reporter, he or she may not understand the pleading, or may ask you why you are suing. In my view, the spread of inaccurate information about a case can be detrimental to the client.

Under those circumstances, I think it’s both ethical and necessary to discuss the pleadings and what they mean—not expounding on them with new facts, but explaining them in normal human English.

The closer you get to trial, the more likely any media or web content could affect a jury pool. I generally do not do media, and remove web content, within a month of trial. During trial, it is safest to avoid media completely, or leave it at “the evidence speaks for itself.”

There is one exception, however. Under RPC 3.6(c), a lawyer can defend a client in the press: Notwithstanding paragraph (a), a lawyer may make a[n extrajudicial] statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

Comment 7 explains: When prejudicial statements have been publicly made by others, responsive statements may have the salutary effect of lessening any resulting adverse impact on the adjudicative proceeding. Such responsive statements should be limited to contain only such information as is necessary to mitigate undue prejudice created by the statements made by others.

By reference to “others,” it would seem this rule applies not just to statements by adverse parties but to anyone making such a statement, including those in media.

Faithful Communications Regarding Lawyer Services The Hunter case also involved the issue of false or misleading advertising.

When lawyers post a list of verdicts and settlements, or about specific cases in blog entries, for example, it is important to consider whether or not even accurate information can be misleading to a potential client.

Rule 7.1 provides: A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

Comment 3 explains the standard for viewing something as misleading: An advertisement that truthfully reports a lawyer’s achievements on behalf of clients or former clients may be misleading if presented so as to lead a

reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case. …

The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead the public.

Advisory Opinion 2206 addresses testimonials that include dollar figures of settlements. The committee concludes that such an advertisement may be ethically proper, but that a disclaimer should be included “if required to keep the advertisement from being misleading.” The inquiring lawyer included a sample disclaimer of “Results of your case depend on its merits.”

Opinion 2206 highlights guidance from previous opinions, including that disclaimers cannot be minimized or obscured, and a disclaimer that “’each case is different and prior results should not create expectation of results in new case’ would be helpful.” These points may seem obvious to you, but they are not to all prospective clients. It is human nature to at least consider that past results could predict future outcomes.

In addition, per Opinion 2206, RPC 7.1 prohibits statements “that do not convey meaningful information (e.g., “Attorneys who get results”).” This type of heading, without specific information to back it up, can be misleading. On the other hand, Comment 3 prohibits specific comparisons with other lawyers: “Similarly, an unsubstantiated comparison of the lawyer’s services of fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated.”

Both rules boil down to one theme: don’t assert things you cannot prove. Be honest not just about the facts, but about what the content means, i.e. how it should be understood.

Many people expect there is some standard metric for valuing cases, when in fact the jury instruction on general damages says the law does not provide one. In addition to avoiding specious assertions, a disclaimer mitigates the possibility that a prospective client believes a list of successes constitutes a full data set to rely on.

Finally, RPC 7.4 used to prohibit communications of “specialization” except for a handful of practice areas. However, based on a June 2015 Association of Professional Responsibility Lawyers study and report 3 on lawyer advertising, this rule has been repealed. RPC 7.1 Comment 8 provides new guidance: A lawyer may indicate areas of practice in communications about the lawyer's services. If a lawyer practices only in certain fields, or will not accept matters except in a specified field or fields, the lawyer is permitted 3 https://aprl.net/wp-content/uploads/2016/07/APRL_2015_Lawyer-Advertising-Report_06-22-15.pdf

to so indicate. A lawyer is generally permitted to state that the lawyer is a "specialist," practices a "specialty," or "specializes in" particular fields, but such communications are subject to the "false and misleading" standard applied in RPC 7.1 to communications concerning a lawyer's services. A lawyer may state that the lawyer is certified as a specialist in a field of law if such certification is granted by an organization approved by an appropriate state authority or accredited by the American Bar Association or another organization, such as a state bar association, that has been approved by the state authority to accredit organizations that certify lawyers as specialists. Certification signifies that an objective entity has recognized an advanced degree of knowledge and experience in the specialty area greater than is suggested by general licensure to practice law. Certifying organizations may be expected to apply standards of experience, knowledge and proficiency to insure that a lawyer's recognition as a specialist is meaningful and reliable. In order to insure that consumers can obtain access to useful information about an organization granting certification, the name of the certifying organization must be included in any communication regarding the certification.

The new “Additional Comments” to RPC 7.1 also quash the longstanding scorn of lawyer advertising: [T]he public's need to know about legal services can be fulfilled in part through advertising. This need is particularly acute in the case of persons of moderate means who have not made extensive use of legal services.

The interest in expanding public information about legal services ought to prevail over considerations of tradition.

Comment 5. And, the new comments defuse the debate over the scope and tact of legal advertising: Questions of effectiveness and taste in advertising are matters of speculation and subjective judgment. … Television, the Internet, and other forms of electronic communication are now among the most powerful media for getting information to the public, particularly persons of low and moderate income; prohibiting television, Internet, and other forms of electronic advertising, therefore, would impede the flow of information about legal services to many sectors of the public. Limiting the information that may be advertised has a similar effect and assumes that the bar can accurately forecast the kind of information that the public would regard as relevant.

Comment 7.4 Conclusion 4 Though outside the scope of this CLE, RPC 7.3 – Solicitation of Clients, has also been amended to allow live solicitation except in certain circumstances. The former rule prohibited live in-person, telephonic, and electronic solicitation.

Many plaintiff lawyers innately advocate for free speech and a public proceeding.

We view our role as not just an advocate for clients, but an enforcer of rules that keep people safe or halt unfair practices. Fortunately, both ethics and legal liability rules protect accurate reports about public proceedings. But for active cases, you need to consider the balance between public proceedings and free speech on the one hand, and the integrity of the proceedings themselves on the other.

In any discussion of past cases, you should consider what someone who knows nothing about the civil justice system would think. You are allowed to advertise based on case successes. The question is, are you faithful to the truth—the complexity and variability of the civil justice system. If you look with a non-lawyer eye to your web content, you will reach the right decision.

Below are some hypotheticals to discuss at the seminar, time allowing: Example 1: You represent a personal injury plaintiff in a claim against XYZ, Corp. Your demand letter and medical records sent to XYZ, Corp. didn’t accomplish anything. Now you have just filed a complaint. Prior to filing, the client reviewed and accepted the complaint. The complaint specifically references injuries, which include incontinence.

You get a call from Mr. Nosy at a small town newspaper. Mr. Nosy wants to know if the injuries are actually serious or if this is just another “frivolous” lawsuit, but he can’t get down to the courthouse. Can you give him the complaint? Can you discuss the injuries with him? Should you?

Example 2: You represent a person insured under a homeowner’s policy by American Farm.

American Farm has denied coverage, claiming that your client committed fraud in the application process by stating he had wired smoke detectors, when they were battery operated.

You sued the insurance company, alleging bad faith, negligent misrepresentation, and fraud.

It is two months before trial. American Farm files a motion for summary judgment alleging fraud by your client, and the local small town paper picks up the story. The paper wants your comment. You have not yet filed your response brief. What can you tell them?

Example 3: The Arguers, a local personal injury firm, has a heading on its website for “Representative Cases.” That web page includes a list of large verdicts and settlements starting with the largest on top, going down to the smallest one listed of $250,000. The

dollar amounts are bolded in large font. In the footer of the page below the firm contact information there is a disclaimer that reads, “We do not guarantee case results.”

The main page of the Arguers’ website prominently features the slogan, “We recover while you get better.” Below the slogan the headline reads: “Certified Best Personal Injury Firm in Washington.” A footnote follows, citing to the National Institute of Self-Aggrandizing Lawyers of America, a.k.a. NISLA. NISLA offered this award to The Arguers and the law firm accepted the award by paying $300.

What potential ethics issues do you spot in this scenario?