Anonymous attorney blogs, online rantings, negative press releases sent via mass mailings. These days, any number of self-publication methods are available to lawyers looking to spin their cases — or others’.
As Dan Ross, a litigator at Stroock & Stroock, puts it, “In the old days you could have 25 cases and you could say all the bad things you wanted, but you couldn’t find anyone to print it. Now, you can create your own press.”
How does that fact affect the ABA rules regarding extrajudicial comments made by lawyers during litigation? Not much, reports the NLJ. According to George Kuhlman, the ABA’s ethics counsel, the ABA isn’t contemplating any changes to its Model Rules to address extrajudicial comments made by lawyers on the Internet.
He says the current rule, which looks at whether statements “will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter,” applies regardless of the medium of dissemination.
Last year, a juror had to be dismissed from a panel in a securities fraud case concerning Peregrine Systems after admitting to having read San Diego lawyer Robert Grimes’s blog about the trial. Grimes, who is posting up-to-date detailed reports on the trial at his firm’s Web site, was reportedly hired to write the blog by a law firm involved in some of the civil litigation arising from Peregrine’s meltdown, but Grimes declined to identify the firm.
And then there’s Cisco’s attorney Richard Frenkel, of patent troll tracker fame. Earlier this year, Frenkelm who used to write his blog anonymously before outing himself, was sued for defamation by two Texas attorneys after he alleged irregularities in a patent infringement case involving Cisco. (See this LB post. Cisco, which was also sued, revised its blogging policy, requiring that any employee who comments about Cisco policies or business online identify themselves, and include a disclaimer that their views are their own, according to the NLJ.)
Patent Chicago attorney Ronald Niro, who offered a $15,000 bounty in February to anyone willing to expose Frenkel’s identity, says it’s the anonymous attorney bloggers who are the problem. “If lawyers want to say something about their cases on the Internet — a practice that I think would be foolish — fine. But put your name on it,” said Niro, who alleges some of his clients were the victims of damaging remarks posted on Frenkel’s anonymous blog.
LB’ers, What’s your take on lawyers who comment on the Web about ongoing litigation? Are the current ABA and state ethics rules sufficient to cover this kind of commentary too much, not enough, or just right?