Legal Ethics

Too Much Information: Blogging Lawyers Face Ethical and Legal Problems

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Updated: Chalk it up to the age of Facebook. Blogging lawyers and judges have landed in trouble with legal ethics regulators and judges, while one blogging lawyer ended up as a defendant in a defamation lawsuit.

The lawsuit began on Sept. 14 in Tyler, Texas, Texas Lawyer reports. It ended Monday with a settlement, before jurors began deliberations, according to IP Law and Business. The plaintiff, intellectual property litigator Eric Albritton, claimed lawyer Richard Frenkel defamed him in anonymous postings on his Patent Troll Tracker blog, written when Frenkel was an in-house lawyer for Cisco Systems.

The suit said Frenkel defamed Albritton by accusing him of conspiring with a federal judicial clerk to alter documents to obtain subject matter jurisdiction in a patent suit. The defamation suit settled after the federal judge overseeing the case ruled Albritton could not win punitive damages unless he proved actual malice.

The New York Times chronicles the ethical travails of other legal bloggers, including Kristine Ann Peshek, fired from her job as an assistant public defender in Illinois and accused in a disciplinary complaint of revealing client confidences in blog posts with thinly disguised references. The Legal Profession Blog was first to report the case.

Peshek didn’t comment to the New York Times, but she told the ABA Journal on Thursday that she disagrees with the assessment that her clients could be identified through her blog. “I would not have posted any information in such a manner that I thought a specific client could be identified, without that client’s permission, or without the information being a matter of public record,” Peshek said. The blog posts identified clients by either their first names, a derivative of their first names, or by their jail identification numbers, according to the disciplinary complaint (PDF).

In other blog posts, Peshek complained that one judge was clueless and another was an —hole. Criticizing a judge also landed blogging lawyer Sean Conway in trouble, the Times notes. In a conditional plea, Conway agreed to a reprimand for calling a judge an “evil, unfair witch” in a blog post. He claimed in a brief submitted to the Florida Supreme Court that his remarks were protected by the First Amendment, but the court affirmed the disciplinary agreement this April, the Times says.

The Times also cited these examples:

• A lawyer requested a continuance due to a death in the family, but the Galveston, Texas, judge checked her Facebook page and discovered news of a week of drinking and partying. The judge, Susan Criss, told lawyers about the episode at the ABA Annual Meeting.

• Lawyer Frank Wilson of San Diego lost his job and got suspended from practice for 45 days for blog postings he wrote as a juror.

Updated on Sept. 23 to include news of the settlement in the Patent Troll Tracker case.

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