Friday, January 20, 2006

Legal conflicts for bloggers

Off topic, but ...

This past week, a colleague and I gave a presentation on blogs and blogging to the Halifax Association of Law Librarians. We covered the usual topics, including an overview of some of the good legal blogs out there, RSS, aggregators, etc.

But I also talked about an issue that has been a concern to me since I started this blog but I really haven't heard any discussion of it among the dozens of legal blogs that I follow: conflicts and blogging. Legal ethics say that a lawyer can't reveal the identity of a client or do anything that may be prejudicial to a client, except with the client's consent. See Rule 22 of the Nova Scotia Legal Ethics and Professional Conduct Handbook.

In this blog, I usually post about articles and incidents of interest that have a privacy angle. If I see an article or another blog post that deals with privacy, I'll post a link to it. I hope that this blog is "one stop shopping" for everything of interest related to Canadian privacy law. But it simply can't be. From time to time, a story hits the media that involves a client of my firm. Also, from time to time, I'll get a call from someone in the media asking to comment on a privacy story that involves a client. I always decline to link to the story or to make the comment. Unless I have the client's OK. (Which I've gotten from time to time, particularly if the result of the matter is public knowledge.)

It is a real challenge and something to be very mindful of. I work in a firm with almost 200 lawyers, with six offices in four jurisdictions. We also are Atlantic Canadian counsel to many of the largest companies operating in North America. Our securities group does agency work on behalf of loads of public companies that require registration in Atlantic Canada. If a lawyer in one of our New Brunswick offices does work for the Canadian subsidiary of a huge insurance company, that company is a client and I have to keep my mouth shut. Even if it may be borderline or in a grey area, I have to err on the side of caution.

I would be very interested to hear the thoughts of other legal bloggers out there on this topic. I think this is an important topic that could bear some informed discussion.


I solicited Alan Gahtan's thoughts on this subject, which he has posted on Gahtan's Technology and Internet Law Blog:

"My view is that lawyers who publish, whether through a blog or through more traditional print media, operate under a disability. They must not disclose client confidences and must not advocate a position that is contrary to their client’s interests. The magnitude of the disability is proportionate to the size of the firm that a particular lawyer practices with since conflicts are “shared” among the lawyers of a firm. It is less of a problem when the lawyer’s publishing activities involve ad hoc articles as opposed to the operation of a website or blog that tries to cover all developments in a particular area. I’m not a legal ethics expert but my view is that simply reporting other information that is already public should not create a legal conflict (although I can see that it could create a business conflict with a particular client). However, it does mean that the blogging lawyer will be limited in their ability to comment on a particular news item if such comment would be detrimental to the interest of a client of the firm. It likely also means that any third party comments will also need to be filtered so that they do not contain any content that is detrimental to any such client. "

I like the use of the term that we lawyers are blogging "under a disability." Our hands our tied and our lips are always sealed, but this isn't unique to the blogging environment. Lawyers always have very juicy gossip but have to keep their mouths closed at cocktail parties. Blogging lawyers also have to be mindful not to aliente present and prospective clients with their blog content. I try to be as even-handed and balanced as possible, with the minimum of personal and political opinion (which is distinct from professional opinion).

There have been a number of times when I've had to remain silent when clients have appeared in the news, even though I have no immediate knowledge of the incident (for example, if its US branch is in the news). There have also been cases when the clients have had positive privacy-related publicity, but it is not my place to speak for or about them without permission. But when it does not inovolve a client, I think I am free to link to public information even though my firm has clients in the same industry with similar business issues.

Thanks Alan, Rob, David and DP Thinker for the comments, above and below.

Technorati tags: legal ethics :: blogging :: blogs :: lawyers :: legal profession


DP Blog said...

The issue of bloggers and its conflicts is interesting. As a "data protection" researcher myself, blogging is one of the issues that I have examined in the context of the European Data Protection Directive 95/46/EC (DPD). In particular, the tensions that exist between the protection of someone's privacy and the protection of freedom of speech. Indeed, Art. 9 of the DPD expressly provides for exemptions if the
processing of personal data was carried out solely for journalistic purposes or the purpose of artistic or literary expression.

The question is whether a blogger could be considered to be writing their views/comments as being "solely" for journalistic purposes/literary expression? I raise these problems because the DPD was implemented prior to the age where blogging/podcasting really took off. With the exception of the case of Lindqvist by the European Court of Justice, we don't really have any specific legal ruling on this. I would not be happy if a blogger should find him/herself inhibited from exercising their right to the freedom of expression as a result of the DPD or national laws implementing this.

Rob Hyndman said...

Agreed, David. And I don't think there is an easy way to deal with this. Complying with firms' conflict-checking procedures seems an inevitable requirement for firms of any size. This is one of the factors I credit with the slow adoption of blogs by large firms.

I'd be interested to hear from law bloggers south of the border, who are likely ahead of us on this issue.

David Canton said...

This issue is a real conundrum. As lawyers, we clearly can't say anything in our blogs that would breach a client confidence. And it would not be good business to say anything that might risk a business relationship with a client.

There is nothing we can do about that. Of course this gets increasingly restrictive the larger the size of the firm gets. And in large firms the internal processes could delay blog entries, which puts a crimp on blogging.

While as bloggers we are not expected to be as "independent" or "unbiased" as journalists, we don't want to be perceived as being unduly influenced by others. Bloggers that have pretended to be independent, but are simply marketing or espousing a certain point of view without declaring who they really are or why they are doing it, have been chastised, and rightly so.

When thinking about this, I compared it to the Sam Bulte controversy where concern has been raised about entertainment industry fundraising for an MP. I see legal blogger issues as different for a couple of reasons. These ethical requirements generally lead to omission, rather than bias or the perception of bias. We are very open about the issue. And there is nothing wrong with being an advocate for an issue or a client(after all, that is what lawyers do) - provided of course that if we are advocating on behalf of a client, we say so.