Ethical Considerations of Court-Ordered Disclosures of Litigant-Sponsored Law Bloggers

JOSHUA M. LOVEALL*

INTRODUCTION
Bloggers are people who contribute content to web sites.1 Their web sites, blogs, have become inuential in the elds of journalism and politics.2 Lawyers have become increasingly active bloggers, with the ABA estimating that twenty two percent of all lawyers are engaged in the process of writing blogs.3 In the past two years, the number of active law blogs grew from 2,793 to 4,333.4 Legal elds vary in quantity of blogs. For example, the ABA directory of continually updated law blogs lists sixty-seven securities blogs and 336 intellectual property blogs.5 Law blogs have been nicknamed blawgs,6 a term suggesting their distinguished status within in the blogosphere. Between 2006 and 2010, law blogs were cited in law review articles 5,883 times.7 The Supreme Court has cited twice to documents posted on law blogs Justice Stevens in his dissent in U.S. v. Booker8 and Justice Breyer in Mayo

* J.D., Georgetown University Law Center (May 2013); B.A., The Johns Hopkins University (May 2010). Thank you to my family and friends for their endless love and inspiration. Thanks as well to all those who have encouraged and supported me in the creation of this Note. 2013, Joshua M. Loveall. 1. Jennifer L. Peterson, The Shifting Legal Landscape of Blogging, 79 WIS. LAW. 8, 44 (Mar. 2006). 2. See BLOGGER.COM TOUR, https://www.blogger.com/tour_start.g (last visited Mar. 18, 2013). 3. LEGAL TECH. RES. CTR., AM. BAR ASSN., 2012 AMERICAN BAR ASSOCIATION LEGAL TECHNOLOGY SURVEY REPORT (2012), available at http://apps.americanbar.org/abastore/index.cfm?sectionmain&fmProduct.Add ToCart&pid2680122EBK; Steven Keslowitz, The Transformative Nature of Blogs and Their Effects on Legal Scholarship, 2009 CARDOZO L. REV. DE NOVO 252, 272 (2009). 4. The web site Blawg.com tracks law blogs. As of November 2, 2010, Blawg.com was tracking 2,793 law blogs. Lee F. Peoples, The Citation of Blogs in Judicial Opinions, 13 TUL. J. TECH. & INTELL. PROP. 39, 80 (2010). Today, it is tracking 4,333 law blogs. BLAWG, http://www.blawg.com/ (last visited Mar. 18, 2013). 5. See ABA JOURNAL BLAWG DIRECTORY, http://www.abajournal.com/blawgs/by_topic/ (last visited Mar. 18, 2013). 6. See ABA JOURNAL FOREBLAWGGERS, http://www.abajournal.com/magazine/article/foreblawggers/ (last visited Mar. 18, 2013). The use of this nickname has been criticized, with opponents suggesting it confuses the public, sends the signal lawyers think they are special and that lawyers always want to use legalese to keep legal information away from the masses. Kevin OKeefe, Blawgs Should Be Banned, REAL LAW. HAVE BLOGS (Oct. 24, 2005), http://kevin.lexblog.com/2005/10/24/blawgs-should-be-banned/; but see Adrienne E. Carter, Blogger Beware: Ethical Considerations for Legal Blogs, 14 RICH. J.L. & TECH. 5, 71 (2007) (Blogs actually make the legal community more accessible by inviting the public to join lawyers in a discussion of the law.). 7. Dave Hoffman, The Inuence of Law Blogs (2006Present), CONCURRING OPINIONS (July 23, 2010, 11:36 AM), http://www.concurringopinions.com/archives/2010/07/the-inuence-of-law-blogs-2006-present. html. 8. United States v. Booker, 543 U.S. 220, 271 n.4 (2005) (Stevens, J., dissenting).

879

880

THE GEORGETOWN JOURNAL OF LEGAL ETHICS

[Vol. 26:879

Collaborative Services v. Prometheus Laboratories, Inc.9 Although no blog was cited in the decision, Kennedy v. Louisiana serves as an example of the potential inuence of blogs on court decisions.10 Both Justice Kennedy for the majority and Justice Alito for the dissent erroneously declared that no federal law permitted the imposition of the death penalty for child rape.11 In his military justice blog, lawyer Dwight Sullivan posted an article pointing out the error by stating Congress did enact a law permitting the death penalty for the rape of a child in Section 552(b) of the National Defense Authorization Act for Fiscal Year 2006, which allows the death penalty for child rape.12 This error became front-page news after attorney Eugene Fidell read the blog post and shared it with his wife, New York Times writer Linda Greenhouse.13 Based on this previously undiscovered law, Louisiana petitioned the Court for rehearing.14 Although it refused to change its initial decision, the Court modied its opinion to acknowledge its omission of the 2006 law.15 With this level of potential impact, it is signicant that law blogs have been cited in court decisions at least 88 times as of June 2012.16 This capacity to inuence the law makes bloggers attractive investments for companies engaged in or preparing for litigation. It is no secret that nancial relationships have formed between litigants and bloggerssome fully disclose such deals.17 The nature of such a relationship is not a typical sponsorship where a company places advertisements on a publication, but instead is one whereby the company hires the blogger as a consultant so that the blogger effectively becomes beholden to the sponsor and publishes articles consistent with the interests of the company.18 These nancial relationships between law bloggers and litigants have garnered

9. Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132 S. Ct. 1289, 1304 (2012) (citing PATENTLYO, http://www.patentlyo.com). 10. Kennedy v. Louisiana, 128 S. Ct. 2641 (2008). 11. See id. at 2652, 2666-71; Dwight Sullivan, The Supremes Dis the Military Justice System, CAAFLOG, (June 28, 2008, 6:25 PM), http://caaog.blogspot.com/2008/06/supremes-dis-military-justice-system.html; see also Peoples, supra note 4, at 41. 12. Sullivan, supra note 11. 13. Rachel C. Lee, Ex Parte Blogging: The Legal Ethics of Supreme Court Advocacy in the Internet Era, 61 STAN. L. REV. 1535, 1538 (2009); Linda Greenhouse, In Court Ruling on Executions, A Factual Flaw, N.Y. TIMES, July 2, 2008, at A1, available at http://www.nytimes.com/2008/07/02/washington/02scotus.html. 14. Peoples, supra note 4, at 41. 15. Id. 16. See J. Robert Brown, Jr., Law Faculty Blogs and the State of the Blogosphere: Court Citations, THERACETOTHEBOTTOM (July 25, 2012, 6:01 AM), http://www.theracetothebottom.org/home/law-faculty-blogsand-the-state-of-the-blogosphere-court-cit.html. 17. For example, patent and copyright blogger Florian Mu ller disclosed that Oracle, party to the case he was blogging about, became a consulting client of his. See Florian Mu ller, Oracle v. Google Trial: Evidence of Willful Infringement Outweighs Claims of Approved Use, FOSS PATENTS (Apr. 18, 2012, 11:59 PM), http://www.fosspatents.com/2012/04/oracle-v-google-trial-evidence-of.html. 18. See Charles Arthur, Google-Oracle Blogger Details Revealed, THE GUARDIAN (Aug. 20, 2012, 11:21 AM), http://www.guardian.co.uk/technology/2012/aug/20/oracle-google-oracle-patent-trial.

2013]

COURT-ORDERED DISCLOSURES OF SPONSORED BLOGGERS

881

attention from the courts.19 In Oracle America, Inc. v. Google Inc., United States District Judge William Alsup reasoned, Just as a treatise on the law may inuence the courts, public commentary that purports to be independent may have an inuence on the courts and/or their staff if only in subtle ways.20 Judge Alsup believed that the disclosure of such nancial relationships would be of use on appeal or on any remand to make clear whether any treatise, article, commentary or analysis on the issues posed by this case are possibly inuenced by nancial relationships to the parties or counsel.21 For the disclosure of nancial relationships between bloggers and litigants to have such signicance, it must be assumed that judges are in some way affected by their consumption of law blogs, perhaps even when, or especially when, the blogs in question are not cited in decisions. That judges may be affected additionally assumes that judges are actually consumers of law blogs. Without knowing for certain the propensity of an individual judge to be inuenced by litigant-sponsored law blog posts, it may be assumed that sufcient likelihood exists to warrant considering the ethical issues arising from sponsored law bloggers in an environment of increasing prevalence of blogs in the legal community generally. Several issues of legal ethics arise from nancial relationships between bloggers and litigants. These issues may be separated into two camps: ethical issues relating to judges and ethical issues relating to law bloggers. It seems clear that lawyers generally ought to cite to law blogs as frequently as would be reasonable given their respective courts tolerance for such sources in order to represent their clients with the proper zeal, just as lawyers would use any other resources available to them. For judges, there are certain preliminary questions concerning the impact of litigant-sponsored law blogs worth further review. In particular, impartiality, integrity, and conict of interest should be evaluated with regard to judges reading and relying upon law blogs. Judges have a strange place in the world of social media and the internet, which may result in their treatment differing from those in other professions.22 Part of evaluating the role of judges in monitoring nancial relationships between litigants and bloggers involves a consideration of the ethics of requiring parties to disclose the existence of such relationships. This discussion requires an analysis of the courts role, past and present, in administering the record. Given that blogs are readily comparable to

19. See Oracle and Google Are Ordered to Reveal Paid Bloggers, BBC NEWS (Aug. 8, 2012, 9:59 AM), http://www.bbc.co.uk/news/technology-19181172. 20. Oracle Am., Inc. v. Google, Inc., No. C 10-03561 WHA, 2012 WL 3561366, *1 (N.D. Cal. Aug. 20, 2012) (order to supplement disclosure). 21. Id. 22. For example, a judge in Florida was prohibited from forming or maintaining a Facebook friendship with a prosecutor. Venkat Balasubramani, Florida Judge Disqualied Over Facebook Friendship With ProsecutorDomville v. Florida, TECHNOLOGY & MARKETING LAW BLOG (Sept. 11, 2012, 12:32 PM), http://blog.ericgoldman.org/archives/2012/09/orida_judges.htm (citing Domville v. Florida, 103 So. 3d 184, 184-46 (Fla. Dist. Ct. App., Sept. 5, 2012)).

882

THE GEORGETOWN JOURNAL OF LEGAL ETHICS

[Vol. 26:879

traditional print media, it is worth considering how the effect of blogs on judges differs from the effects of traditional media. Litigation is already an expensive process and the ability for one party to form nancial relationships with bloggers could disadvantage opponents who do not have similar means of obtaining extra support for the litigation. The potential inequities that would result from nondisclosure must therefore be considered when deciding the ethical role of judges concerning nancial relationships between bloggers and litigants. For lawyer law bloggers, there are separate ethical issues. There are general ethical concerns with publishing information, such as privilege. Furthermore, when lawyers are paid to blog, it may be argued that the litigant becomes a client of the attorney-blogger. The formation of such a relationship might create obligations for the attorney that he or she may not desire. As individual authors, there are also free speech implications involved in regulating the law blog industry. This Note will explore the various ethical issues for lawyers, litigants, and judges that may arise when lawyers blog for litigants. It will argue that the disclosure by litigants of nancial relationships with bloggers would be an effective method of eliminating potential harms of biased articles by allowing the court to weight commentary otherwise presumed to be impartial based on the existence of litigant sponsorships. Modifying this presumption of impartiality in cases concerning developing areas of law will ensure that courts are able to develop the law in a legal environment as free from sponsored bias as possible. This Note will further argue that blogging is a good activity for lawyers and that this blogging should remain independent from client control. This Note will also conclude that the practice of publishing such articles and the reference by courts to such articles, with the changes suggested, is ethically sound. In Part I, this Note will explore the ethical issues arising out of nancial relationships between litigants and law bloggers. It will take into account the different regulatory environments of lawyers and individuals, as well as comment on concerns unique to the internet. Part II describes how courts should respond to the ethical issues described in Part I while expanding on various practical concerns. Part III addresses additional issues affecting regulation of the interests of law bloggers, privacy and freedom of speech.

I. ARE LITIGANT-SPONSORED LAW BLOGS ETHICAL?

A. THERE ARE GENERAL ETHICAL CONCERNS WHEN PUBLISHING

Attorneys must ensure that their publications do not lead audience members to believe the attorney has been retained for professional legal services. Maintaining the boundary between reader and client is important for an attorney because

2013]

COURT-ORDERED DISCLOSURES OF SPONSORED BLOGGERS

883

ethical duties are imposed when an attorney-client relationship is formed.23 Typically, a lawyer may answer a general question about the law, for instance in a purely social setting, without a client-lawyer relationship arising.24 However, in providing advice to a specic person or about a particular situation, an attorney runs the risk of practicing law and forming a lawyer-client relationship.25 Thus, regardless of whether an attorney is being paid to blog, precaution is important in order to avoid the creation of ethical obligations to readers who could ultimately be considered prospective or actual clients. Attorneys owe duties not only to clients, but to the public as well.26 Authoring meaningful law blog articles is consistent with this duty, as an attorney should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education.27 This obligation suggests that the lawyer must act ethically when publishing to avoid disseminating bad advice or advocating for ideas that would work to harm the law or weaken legal education. However, unless truly malicious, a law blog article is unlikely to raise these concerns when authored due to personal interest. Law blog articles written on behalf of a third party and/or potential litigant are more likely to implicate the ethics of the authoring attorney as the potential exists for the sponsors interests to misalign with the interests of the attorney. Rule 1.6 of the Model Rules requires that a lawyer not reveal information relating to the representation of a client except under specied exceptions.28 Where a blogger is hired by a client, this concern would not be relevant either because the article would not mention the client specically or because the client would have given informed consent in such cases in order to have its case discussed. Another general concern when blogging is that the blog could be considered advertising under Rule 7.2.29 In some jurisdictions, these communications require disclaimers to protect consumers from being misled about the potential benets of legal services.30 In Virginia, a lawyer blogged about his

23. See John M. Burman, Ethically Speaking: Duties to Prospective Clients, 33 WYO. LAW. 34, 34 (2010) (Although ethical duties may attach outside of a lawyer-client relationship, ethical duties always attach between lawyers clients). 24. RESTATEMENT (THIRD) OF LAW GOVERNING LAW 14 (2000). 25. Frederick C. Moss, Is You Is, or Is You Aint My (Client)?: A Law Professors Cautionary Thoughts on Advising Students, 42 S. TEX. L. REV. 519, 522 (2001). 26. MODEL RULES OF PROFL CONDUCT pmbl. 5, 6 (2012) [hereinafter MODEL RULES]. 27. MODEL RULES pmbl. at 6. 28. MODEL RULES R 1.6 (one such exception is when informed consent is obtained to reveal information related to the representation of a client). 29. Jeff Day, Blogging Criminal Defense Attorney Must Run Short Disclaimer, Judges Rule, ABA/BNA LAWYERS MANUAL ON PROFESSIONAL CONDUCT (Aug. 1, 2012), http://convergence.bna.com/ContentDelivery/ ContentItem/PrintArticle/236848836000000200/354478. 30. Id.

884

THE GEORGETOWN JOURNAL OF LEGAL ETHICS

[Vol. 26:879

recent court cases and included personal information about his clients.31 In response to the Virginia State Bars lawsuit against the lawyer, a panel of circuit court judges stated that a Virginia criminal defense lawyer is free to discuss his clients cases on his rms website but he must add a short disclaimer warning readers that results in other cases cannot be predicted.32 Although placing such a disclaimer on a blog discussing cases would be prudent, the requirement for a disclaimer may be difcult for some law bloggers to implement.33 One commentator stated that a blog consisting only of a lawyers writings with no reader comments should be viewed as a walking billboard.34 This raises the question of whether social media functions such as reader commenting alter the analysis of whether an attorneys blog violates particular ethical rules. The ability to interact with a blog by posting comments would allow for a dialogue between readers and, should he or she choose to engage, the attorney-author as well. Such communications between the attorney and the readers could risk becoming discussions with prospective clients, but the public nature of blog comments could negate any condentiality concerns. Since a reader would be free to post a comment seeking legal advice rather than simply offering discussion, lawyers should post some disclaimer about what their blogs are attempting to achieve. If an attorney is not using a blog directly to recruit clients (even if he or she would allow for incidental recruitment where a client chooses a lawyer because of the blogs quality) then the attorney should communicate that lack of intent directly. While it may be safer for a blogging attorney to disable social media functions in order to avoid potential complications, the legal eld benets from this new form of dialogue. Discussion of the law seems especially benecial when nonlawyers attempt to educate themselves through discussions on law blogs. Given that the sharing and ensuing development of ideas is a valuable goal attainable through law blogging, attorneys should be encouraged to allow for meaningful discussion on their blog posts. To label such law blogs as advertisements is to discredit their potential benets as well as to needlessly require disclaimers that arguably do little to help readers. The only disclaimer a lawyer should post (or should be required to post) on a blog is one explaining the intended nature of the lawyers interaction with commenters in order to avoid the unintended creation of a lawyer-client relationship. The disclaimer required in the Virginia case (stating that results in future cases cannot be predicted based on successes in previous cases) neither encourages the development of ideas nor protects against

31. Virginia State Bar ex rel. Third District Comm. v. Hunter, No. CL12-335-7, (Va. Cir. Ct., July 9, 2012), affg in part, revg in part, 27 Law. Man. Prof. Conduct 723. 32. Day, supra note 29. 33. See Steven W. Kasten, Professional Ethics and Social Media, 55 B. B.J. 40, 43 (2011) (suggesting implementation of disclaimers can eliminate risks, but social media websites may not provide sufcient function control to implement disclaimers properly). 34. Day, supra note 29.

2013]

COURT-ORDERED DISCLOSURES OF SPONSORED BLOGGERS

885

unintended lawyer-client relationshipsit exists only as a consumer protection device. If disclaimers are to be required, they should at least be limited in necessity. Protecting against unintended lawyer-client relationships is more important than reining in the expectations of potential clients because in the former situation a reader would be under the false impression that he or she has acquired representation by a lawyer whereas in the latter a consumer may arrive at an unsound conclusion about the effectiveness of attorney who he or she may hire. This discussion ignores situations in which the lawyer is blogging as an individual rather than as an attorney. Further complications are possible when a lawyer posts information online about his or her feelings or personal opinions. For example, if a lawyer were to receive a continuance from a court in order to attend a funeral but then posts about going to parties during that time, Model Rule 3.3(b)s requirements relating to candor towards the tribunal would be implicated.35 While these kinds of interactions are important considerations for lawyers posting information publicly on blogs, this Note assumes the lawyer is publishing editorial commentary about cases and legal theories rather than personal developments. Depending on the sensitivity of local bar organizations, the potential for attorneys to be vulnerable to unintended lawyer-client relationships could exist even in non-personal, more academically-themed blog posts. It would be unfortunate for law-bloggers to be dis-incentivized from publishing articles out of a fear of taking on unintended ethical duties. Therefore, the standards for what creates a lawyer-client relationship should be set to account for the social media activities of attorneys who may not intend to create a lawyer-client relationship through their online publications. Furthermore, constraints on the voice of law-bloggers could alter the nature of the environment in which law-bloggers publish. The individuality and perspective that law-bloggers may bring even to academic blog articles could have a large impact on the legal profession generally. This idea has been discussed in terms of law bloggers altering the legal eld from a one-to-many environment into a many-to-many environment.36 Such a shift could threaten the traditional view of the profession as having a straight-laced culture, highly dependent on formalism and hierarchy.37 Where previously, legal analysis was made available through centralized publishing sources, law blogging allows for a less-regulated collection of articles to reach the legal community. This many-to-many environment creates a broad and expansive marketplace for legal ideas. Blogging for clients could threaten the natural and academic development of legal elds in this marketplace.

35. Angela OBrien, Are Attorneys and Judges One Tweet, Blog or Friend Request Away from Facing A Disciplinary Committee?, 11 LOY. J. PUB. INT. L. 511, 517 (2010). 36. Lucille A. Jewel, I Can Has Lawyer? The Conict Between the Participatory Culture of the Internet and the Legal Profession, 33 HASTINGS COMM. & ENT. L.J. 341, 342-43 (2011). 37. Id.

886

THE GEORGETOWN JOURNAL OF LEGAL ETHICS

[Vol. 26:879

B. WHEN PAID TO BLOG, ARE LAWYERS REPRESENTING A CLIENT?

Stiing of blogging by lawyers might be justied when a lawyer is publishing law blog articles on behalf of a third party. Blogging for hire raises different concerns than writing on ones own behalf. These concerns are important both to individual lawyers as well as to the marketplace of legal ideas generally. This section addresses the concerns relevant to attorneys who blog for third parties. Blogging for a third party raises an additional concern compared to publishing generally in that an attorney-client relationship likely forms with the third party. Proposed Rule of Federal Evidence 503 denes a client as someone who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from him. Though Rule 503 was not enacted, a similar provision has been adopted in various states rules of evidence (including Alaska and Texas). The Advisory Committees notes to the proposed federal rule provide that the client need not be involved in litigation; the rendition of legal service or advice under any circumstances sufces.38 Law bloggers who publish articles advocating jurisprudence favorable to their client thus arguably render legal services or advice. Such an analysis would impose ethical standards on more attorney interactions. Without deciding whether this is desirable, an attorney may protect against violating increased obligations toward third parties by acting according to the broad understanding of what forms an attorney-client relationship. This interpretation is consistent with the analysis typical of attorney actions involving new technologies, which eschews bright line rules for a comprehensive analysis.39 When a law blogger writes articles on behalf of a client, the lawyer owes ethical obligations to that client.40 One such obligation is to zealously represent the client.41 In the criminal law context, the maintenance of client condence and trust are paramount and zeal and condentiality trump most other rules, principles, or values.42 It is suggested that the criminal context justies greater zeal because of the extensive interests at stake, the imbalance of power between the state and defendant, and by the importance of maintaining a professional relationship with the defendant.43 Despite clear differences, these concerns should not be considered insignicant in the civil context. There is no compelling reason a civil lawyer should not advocate for his or her client to the greatest
38. FED. R. EVID. 503 advisory committees note. 39. See Carl Pacini et al., Accountants, Attorney-Client Privilege, and the Kovel Rule: Waiver Through Inadvertent Disclosure Via Electronic Communication, 28 DEL. J. CORP. L. 893, 918 (2003) (because cordless phone technology will continue to evolve, courts will eschew the use of bright-line rules in this area). 40. See Burman, supra note 23, at 34. 41. MODEL RULES pmbl. 2. 42. Katherine R. Kruse, Lawyers Should Be Lawyers, but What Does That Mean?: A Response to Aiken & Wizner and Smith, 14 WASH. U. J.L. & POLY 49, 54 (2004) (quoting Abbe Smith, The Difference in Criminal Defense and the Difference It Makes, 11 WASH. U. J.L. & POLY 83, 89 (2003)). 43. Id. at 56-57.

2013]

COURT-ORDERED DISCLOSURES OF SPONSORED BLOGGERS

887

extent legally permissible except perhaps where such advocacy comes at too high a cost to an attorneys concurrent duty to the public generally. Therefore, a lawyer who blogs for a client must advocate that clients belief zealously. Such advocacy seems dishonest when posted on a law blog as if it were truly a note from the lawyer. To zealously represent a client, a lawyer may have to forgo including his or her own beliefs. In those situations, the lawyer would be publishing under his or her own name material that he or she does not necessarily agree with. This is different from making arguments on behalf of a client in a case. In the latter situation, the lawyer is understood to be an agent of the client presenting information meant to be as biased as the truth permits. Readers of a law blog may expect the articles to be meaningful writings of the attorneys opinions, thoughts, or beliefs. There is therefore a misalignment between conventional client representation and writing articles on behalf of a third party. This misalignment can be corrected by courts, and as this Note will argue, such correction will protect law bloggers and the development of legal doctrine in this new medium.
C. CLIENTS ARE NOT SUBJECT TO FORMALIZED ETHICAL STANDARDS

While individuals may be subject to ethical constraints based on community standards or individual beliefs, this is in contrast to attorneys being subject to codied ethical standards. The individual also stands in contrast to attorneys who have signicant potential repercussions for their violations of ethical standards. As an individual, the prospective litigant or other third party faces signicantly fewer consequences for acting unethically. There could be some meaningful consequences however. One potential consequence is that unethical behavior could limit a litigants ability to succeed on certain equitable arguments if the judge determines the litigants behavior violates the clean hands doctrine.44 Furthermore, non-codied rules such as community standards may be enforced extra-judicially within an individuals community. This pressure, in addition to an individuals desire to act within the scope of what he or she considers to be ethical behavior, regulates individual behavior. The additional stress and potential liability presented by litigation may inuence an individuals decision-making process. It is possible that the adversarial nature of proceedings further compels and individual to value selfinterest above ethical considerations. Given that an attorney should zealously represent the clients interests, the client either may rest knowing his or her interests are in the hands of the attorney or may take this mentality to heart and work to zealously defend his or her self interests however possible. There is no formal restriction preventing a third party or prospective litigant from hiring law

44. See John Kimpen, Character of Wrongdoing Which Will Prevent Relief, 41 OHIO JUR. 3D EQUITY 73 (2013).

888

THE GEORGETOWN JOURNAL OF LEGAL ETHICS

[Vol. 26:879

bloggers to write favorable articles. Encouraging legal authorship, even if it is biased, may also benet similarly situated third parties and the public generally. The public may benet from biased law blog articles because increased discourse about a subject could lead to a deeper understanding of issues of public concern that attorney authors would be able to esh out collectively. Ignoring the potential impact of hidden biases, even sponsored blog articles would contribute to the discourse in developing legal doctrine. The sponsored articles will at least add to the volume of exchange, and theoretically the quality of such articles would be commented upon and reviewed by other law bloggers acting as a sort of check on potential bias. If the original articles are coupled with social media components, this dialogue will be a natural process. Social media could thus act as an additional layer of peer review serving to lter out unreasonable or otherwise biased articles from affecting the development of legal doctrine in any meaningful way. A lawyer might support the clients desire to hire law bloggers as part of zealously representing the clients interests. Although it would be rational for the client to pursue such options given the lack of ethical obligations imposed on individual clients, the lawyers interests could be in tension. This tension is a result of the lawyers concurrent duty to the public, unshared by the client. The courts should balance these interests so that attorneys are able to protect clients as well as develop legal doctrine through law blogs in a productive fashion.
D. THE INTERNET INTRODUCES UNIQUE CONCERNS

Lawyers are prohibited from using trade names or other misleading names.45 A common feature of the internet, including blogs, is the ability for a user to operate under a username. A law blogs name, if associated with the lawyers practice or if construed as a practice, must then abide by the rules regulating rm names. Lawyers will likely not be limited to simply using their given names as usernames however. In one case, a lawyer used the motto The Country Lawyer in an advertisement, with the lawyers name inserted apart from motto.46 The court decided that this did not deceive public about identity, responsibility, and status of attorney; therefore, such use did not violate prohibition against use of trade name.47 As lawyers increasingly engage in blogging, branding through the creation of usernames could be important. The extent to which these usernames will be regulated so as to avoid misleading potential clients is undetermined.

45. MODEL CODE OF PROFL RESPONSIBILITY DR 2-102(B) (1980). 46. Gregory G. Sarno, Use of Assumed or Trade Name as Ground for Disciplining Attorney, 26 A.L.R. 4th 1083 (1983) (citing Matter of von Wiegen, (63 N.Y.2d 163 (1984)). 47. Id.

2013]

COURT-ORDERED DISCLOSURES OF SPONSORED BLOGGERS

889

Given the pervasiveness of usernames across the internet, readers will likely understand the username as representative but not synonymous with the lawyer, meaning that confusion and deceit are unlikely.48

II. HOW SHOULD THE COURTS INTERVENE?

A. IT IS THE COURTS ROLE TO ADMINISTER THE RECORD

In federal civil cases, litigants generally may obtain discovery regarding any nonprivileged matter that is relevant to any partys claim or defense.49 Unless the identication of nancial relationships with bloggers is relevant to a claim or defense, parties will not be able to obtain such information through discovery. In such cases however, the court has the broader ability to discover any matter relevant to the subject matter involved in the action.50 The breadth with which judges dene the subject matter could lead to haphazard determinations of whether nancial relationships between litigants and bloggers are relevant. However, considering that the effects of litigant-nanced blogs would be to inuence the subject matter generally, the existence of such relationships should always be relevant. Discovery of this information could be in tension with the work product doctrine, which provides a qualied immunity for materials prepared in anticipation of litigation by a party, her attorney or other representative.51 Although work product does not cover simple collections of evidence52 without any creative or analytic input by an attorney or his agent,53 the court must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a partys attorney.54 If a lawyer, in anticipation of litigation, selected particular bloggers to hire, the list of such bloggers may appear to be a simple collection of evidence but could arguably disclose mental impressions or legal theories of the attorney. However, the protection of the work product doctrine may not apply to discovery undertaken by the court itself. Furthermore, the court could protect against disclosure by reviewing the parties nancial relationships with bloggers in camera as the document need not be admitted in court.

48. Although many Internet users are savvy, not all are. Given that some readers may believe that a lawyer blogging under the username never_loses_a_case actually never loses cases, some regulation may be appropriate. 49. FED. R. CIV. P. 26(b)(1). 50. Id. 51. CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, 2 FEDERAL EVIDENCE 5:37 (3d ed.) (citing Hickman v. Taylor, 329 U.S. 495 (1947)). 52. John M. Burman, The Work Product Doctrine, 29 WYO. LAW. 38, 40 (2006). 53. In re Grand Jury Subpoenas Dates March 9, 2001, 179 F. Supp. 2d 270, 284 (S.D.N.Y. 2001). 54. FED. R. CIV. P. 26.

890

THE GEORGETOWN JOURNAL OF LEGAL ETHICS

[Vol. 26:879

B. ABOUT WHICH IMPACTS OF BIAS SHOULD COURTS BE CONCERNED?

Judges are expected to render just, correct decisions in an ethical manner the Judicial Code of Conduct codies this expectation of impartiality.55 Bias frustrates both judicial means and ends; it altersconsciously or subconsciouslythe decision making process in such a way that decisions are less likely to be just and correct. While conscious biases may result from a judge reading a particularly compelling blog, there is no difference between that bias and any other conscious bias the judge may possess. Recently, psychological science brought to light potentially signicant ramications in judicial decisionmaking caused by subconscious, or implicit bias.56 Implicit bias is especially dangerous because conscious desires or conscious reports against being biased do not eliminate their presence.57 Thus, even with some measure of protection, implicit biases may be able to inuence a judges behavior unwittingly. Implicit bias relates to social perception, impression formation, and judgment.58 Blogs inuence all of these areas. Blogs are a form of social media. As such, a reader who explores the blogosphere will easily create an impression of what the social perception of a given subject matter is. The impact of individual articles is a strength of blogging, as it allows for the many-to-many environment to exist. That impact is a risk when individual articles, potentially unchecked by competing ideas, present themselves as the collective understanding of legal minds generally. A judge may form an impression of legal trends and understanding through the social experience of interacting with blogs. When litigants are able to control the content of these blogs, a judges casual online reading becomes a vehicle for the subconscious introduction of bias. This ultimately may affect the judges judgment, which is the ultimate goal of the litigant nancing law bloggers. The judge of course should be able to lter information from blog articles on his or her own regardless of peer review, but sponsored articles are different because there is a presumption that the author stands behind the writing. When a blogger sells his or her voice, the client buys not only a favorable article but borrows the lawyer bloggers earned reputation. The risks posed by this process justify the counteractive effects provided by disclosure of nancial relationships between litigants and bloggers. The presumption that blog articles are independent and supported by the authoring law blogger should be questioned when the articles are relevant to a particular case. Confronting a potential implicit bias directly is an effective means of combatting
55. See MODEL CODE OF JUD. CONDUCT Canon 2 (2007); MODEL CODE OF JUD. CONDUCT CANON 3 (2004). 56. John F. Irwin & Daniel L. Real, Unconscious Inuences on Judicial Decision-Making: The Illusion of Objectivity, 42 MCGEORGE L. REV. 1, 2 (2010). 57. Id. at 4 (citing Mahzarin R. Banaji et al., How (Un)Ethical Are You?, HARVARD BUS. REV., Dec. 2003, at 59). 58. Irwin & Real, supra note 56, at 2.

2013]

COURT-ORDERED DISCLOSURES OF SPONSORED BLOGGERS

891

the unintended effects of such a bias. This confrontation is made possible by requiring parties to disclose blog sponsorships. With a this disclosure model, prior readings that may have helped form a judges perspective on a given legal doctrine may be re-evaluated or closely reviewed to ensure the material was not misleading or given undue weight by the law bloggers reputation.
C. THE ROLE OF MONEY CREATES POTENTIAL INEQUITIES

Allowing clients to sponsor law blogs in order to help their litigation enables parties with more resources to gain a potential advantage in court. This relative advantage is not unique to the ability to sponsor blogs. Generally, the more nancial resources available to a party in litigation, the more she can spend on legal representation.59 In some cases where law bloggers are involved, both parties will be wealthy enough to have sponsored law blog articles. This parallels the trend of rising litigation expenses affecting the middle-class and poor while leaving the upper-class relatively unaffected.60 The disparities created by varying party resources should be addressed by the court when appropriate. Where, such as with ordering disclosure of law blog sponsorships, the court may achieve some equity without affecting the positions of the parties generally, the court should intervene. Ordering disclosure does not punish a party who has sponsored law bloggers. The court need not punish such a litigant by construing legal analyses against the litigants interests. Disclosure serves rather to inform the court as to the potential biases forming legal jurisprudence upon which the court may base its decision.

III. INTERESTS OF LAW BLOGGERS

A. REGULATION MAY RAISE FREE SPEECH CONCERNS

Generally, the government may not compel speech under the First and Fifth Amendments.61 Although the issue of compelled speech often arises in cases where individuals oppose the compulsion of a specic message,62 [t]he Constitutions proscription of compelled speech does not turn on the ideological content of the message . . . [The Constitution prohibits] being forced to speak rather than to remain silent.63 A critical exception to this general prohibition is for witnesses testifying in court. The Fifth Amendment expressly states that no

59. Albert Yoon, The Importance of Litigant Wealth, 59 DEPAUL L. REV. 649, 652 (2010). 60. Id. at 658. 61. See U.S. CONST. amends. I, V. 62. See, e.g. Alliance for Open Socy Intl, Inc. v. U.S. Agency for Intl Dev., 651 F.3d 218 (2d Cir. 2011) cert. granted, 133 S. Ct. 928, 184 L. Ed. 2d 719 (U.S. 2013) (concerning a provision requiring organizations that receive funding under the Leadership Act to have a policy expressly opposing prostitution and sex trafcking). 63. William M. Howard, Constitutional Challenges to Compelled SpeechParticular Situations or Circumstances, 73 A.L.R. 6th 281 2 (2012).

892

THE GEORGETOWN JOURNAL OF LEGAL ETHICS

[Vol. 26:879

person shall be compelled in any criminal case to be a witness against himself.64 By negative inference, a person may be compelled to be a witness otherwiseas demonstrated by the courts ability to subpoena testimony. Thus, a court would not violate the Constitution by ordering parties to disclose nancial relationships with law bloggers. The point is not certain,65 but law bloggers may be considered journalists. This is relevant because although [m]any of what we consider to be First Amendment rights apply to the press and the public in equal measure,66 journalists are sometimes recognized as a potentially special group deserving of additional free speech protections.67 The additional protections afforded to journalists usually come in the form of shield laws, which protect journalists from having to disclose their sources.68 This is different from parties having to disclose their paid journalists. However, such disclosures still implicate the free speech rights of law bloggers because of a possible chilling effect on their production of articles. For example, a law blogger may refuse a sponsorship he or she would have otherwise accepted for fear that the relationship will be forcibly disclosed as part of future litigation. The courts have been wary to accept the chilled speech argument as it relates to source disclosure,69 so its application to sponsorship disclosure is unlikely to be convincing.
B. REGULATION MAY RAISE PRIVACY CONCERNS

The common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others.70 In their pivotal law review article on the subject,71 Samuel Warren and Louis Brandeis (later Justice Brandeis) conclude that the protection afforded to thoughts, sentiments, and emotions, expressed through the medium of writing or of the arts, so far as it consists in preventing publication, is merely an instance of the enforcement of the more general right of the individual to be let alone.72 This conception of privacy is consistent with the understanding that the government may not compel expression except. There are two critical

64. U.S. CONST. amend. V. 65. See Sunny Woan, The Blogosphere: Past, Present, and Future. Preserving the Unfettered Development of Alternative Journalism, 44 CAL. W. L. REV. 477, 486-87 (2008). 66. Jane E. Kirtley, Will the Demise of the Reporters Privilege Mean the End of Investigative Reporting, and Should Judges Care If It Does?, 32 OHIO N.U. L. REV. 519, 525 (2006). 67. See Branzburg v. Hayes, 408 U.S. 665, 743 (1972) (Stewart, J., dissenting). 68. See Marketos v. Am. Employers Ins. Co., 460 N.W.2d 272, 281 (Mich. Ct. App. 1990). 69. See Marcus A. Asner, Starting from Scratch: The First Amendment Reporter-Source Privilege and the Doctrine of Incidental Restrictions, 26 U. MICH. J.L. REFORM 593, 598 (1993). 70. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 198 (1890) (citing Yates, J., in Millar v. Taylor, 4 Burr. 2303, 2379 (1769)). 71. See Jeffrey F. Ghent, Waiver or Loss of Right of Privacy, 57 A.L.R.3d 16 2(a) (1974). 72. Warren & Brandeis, supra note 70, at 205.

2013]

COURT-ORDERED DISCLOSURES OF SPONSORED BLOGGERS

893

exceptions to this restriction on the government when considering the privacy of sponsored law bloggers not to be identied in court. First, the government may compel expression upon the witness stand, as discussed in the previous section.73 Additionally, the right to privacy is considered waived when an individual publishes information.74 Law bloggers arguably give up their right to privacy in the information they publish on their blogs. However, in demanding parties reveal the identities of sponsored law bloggers, the courts are seeking information not necessarily made publicly available by the law bloggers. While some law bloggers may make their nancial relationships publicly known (possibly in an effort to promote openness or inspire reader condence), the court would be little served in receiving a list containing only those sponsored law bloggers who have publicly declared their sponsorships. Privacy concerns are typically evaluated using a balancing test against the implications of not having access to the relevant information.75 Assuming that law bloggers have a legitimate privacy interest in their nancial relationships, the strength of that interest is in competition with the courts interest in protecting against bias and the interest in legal articles free of sponsorship generally. Given the public nature of publishing law blog articles, law bloggers enter the public to a sufcient extent that their privacy interests are reduced. The courts interest in understanding the foundation of the legal analyses it may rely upon in making decisions is high as it has an impact on the law outside of individual litigants and law bloggers. Thus, while law bloggers have a privacy interest, such an interest would be insufcient to prevent a court from requiring disclosure of a partys blog sponsorships.

CONCLUSION
Law blogs empower lawyers to communicate and develop legal doctrine in an unprecedented way. Whereas previously, legal articles were published centrally, law blogs enable a broad discourse involving many individuals. The rights of these individual lawyers to blog as they see t is a right guaranteed by the constitution and one that is ultimately essential to creating a meaningful marketplace of legal ideas. When the lawyers voice is a commodity available for use by third parties, this process is no longer a method of developing doctrine. Instead, it is a novel opportunity for the zealous representation of clients. Attempting to inuence the development of doctrine so as to favor clients is an abuse of the open marketplace of ideas. Sponsored articles may be dealt with by

73. Id. at 198. 74. Id. at 218. 75. See Gary R. Clouse, The Constitutional Right to Withhold Private Information, 77 NW. U. L. REV. 536, 546 (1982).

894

THE GEORGETOWN JOURNAL OF LEGAL ETHICS

[Vol. 26:879

the mechanisms inherent to a marketplace of ideas such as peer review. Especially in the context of social media, an article is open to instant scrutiny from lawyers across the globe. It is possible therefore that harmful or otherwise bad doctrine would be ltered away. Sponsored law blog articles are not necessarily undesirable. Such articles would provide volume in the marketplace of ideas and keep communication owing. Sponsored articles may inspire debate and thereby allow for the development of doctrine in a way that is productive and efcient. Articles biased by sponsorship are not guaranteed to endure constant fact checking and review. Articles taken as the writings of individual lawyers may be perceived as having an element of honesty, as if at least the blogging lawyer considered the ideas worth sharing if not legitimate. Sponsored articles are client representation masquerading as lawyer discussion, which would not be viewed with the same discerning perspective as a lawyers arguments in a courtroom. To address that discrepancy, courts must take an active role in managing the marketplace of ideas. Courts can fulll this management role easily by simply requiring parties to disclose bloggers on their payrolls. Such a requirement imposes little burden or cost on the courts and is only an imposition on parties to the extent that they engage in law blog sponsorship. These burdens are fair to courts and parties. The lack of a burden on lawyers who blog both respects their freedom of speech as well as leaves space for the development of legal doctrine in a social media-enabled marketplace of ideas.