D.A. Confidential describes some of the rules he follows when writing blog posts:
- Do not write about ongoing cases. If I want to draw attention to one of my cases, say it’s going to trial, then I let people know it’s going to trial and I post a link to a news story about the case, without commenting on the facts myself. This can be tough because I’d love to blog about what happened last week, I’ve been asked to do so, but I’m going to put some time between the event and my account of it.
- Do not generate, encourage, or participate in topics of controversy. Thus you won’t find discussions about the death penalty, immigration, drug policy, or the Dallas Cowboys here.
- Treat everyone with respect. If I have a funny case where someone did something silly, or said something amusing, I will never tell you about it to humiliate that person and so won’t identify them. We see so many funny things in court it’s tempting to give every last detail but I try to be more respectful than that. The one time I will name someone is if they have done a really good job and warrant some attention.
The third is a good rule for prosecutors and for anonymous bloggers; in the real world, however, when some types of people (generally 1. elected officials; 2. people running for office; and 3. others deliberately acting in the public eye) screw up, there is value in discussing it.
The second may be a good rule for prosecutors; often, though, topics of controversy need discussing, and those of us not whose speech is not bound by bureaucratic rules might as well discuss them.
The first is an excellent rule for everyone. Do not write about your ongoing cases.
I hadn’t given much thought to the matter before, and have not always observed the rule (here I wrote midtrial about jury selection), but Scott Greenfield has kept this rule for years; he won’t write about closed cases either:
[M]y lack of discussion has . . . everything to do with my decision to not discuss my cases to avoid any possibility that a confidence or strategy will be disclosed. I don’t own my cases, and they aren’t mine to write about. They belong to my clients, and my clients don’t want the worst experience of their lives strewn across the internet. I respect that, so I don’t kiss and tell.
What we think about our cases is our work product, and what we know about them is confidential. Like every good rule, do not write about your ongoing cases should allow for exceptions. There are circumstances in which revealing work product and confidential information (because, for example, doing so helps the client), but those circumstances are truly exceptional.
Will writing about your ongoing case hurt the client? If it might, don’t do it. Obvious.
Will writing about your ongoing case help the client? If it might, consider the law on publicity. In Texas, for instance:
Rule 3.07 Trial Publicity
(a) In the course of representing a client, a lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicatory proceeding. A lawyer shall not counsel or assist another person to make such a statement.
I’m not one to say, “the rules forbid it, and therefore you must not do it,” but you should, before you start to lean over that line, be aware of and willing to accept any legal consequences (see Bennett’s Law of Rules, here).
How about writing about ongoing cases with no identifying details? It may be possible to write about an ongoing case without revealing to anyone what case you’re writing about. If anyone not privy to your work product can figure out who the client is, everyone might as well know.
If anyone not privy to your work product thinks they can figure out which of your clients you’re writing about, it might hurt that client rather than the one you’re actually writing about (the “different clients all attracted to kids” problem I wrote about here, perhaps too cleverly). So ask yourself: will writing about an ongoing case will hurt any client? If so, don’t do it.
(This is probably a good rule to apply to writing about other stuff as well, but what if it might hurt a client? Anything we say publicly might make some current or future juror secretly despise us; should we be paralyzed into silence by this?)
If writing about an ongoing case won’t hurt any clients, ask yourself: do you have to do it right now, or can it wait until the case is closed? If it can wait, let it.
If it can’t wait, it’s a good idea to ask yourself why, and probably to have someone you trust read the post to make sure it’s really such a good idea—sometimes the need to vent can short-circuit reason, and we all can use a second opinion from time to time.
There are lots of reasons—egotistic, altruistic, avaricious, or therapeutic—that lawyers blog. None of them trump the best interest of our clients. Very rarely will writing about an ongoing case be in that interest.