Litigation
Cite as: Jason Boulette and Tanya DeMent, Ethical Considerations for Blog-Related Discovery, 5 Shidler J.L. Com. & Tech. 1 (Sep. 23, 2008), at http://www.lctjournal.washington.edu/Vol5/A01BouletteDeMent.html.
©Jason Boulette and Tanya DeMent
The rise in blogs (short for "Web-logs") has spawned a new world of considerations for lawyers and clients. At their foundation, blogs are Web sites that serve as online diaries and sounding boards. Blogs typically consist of posts, pictures, images, links, and other entries that run the gambit of subjects from politics to sports to literature to personal materials. The exponential rise in blogging stems from improvements in technology, the increasing sophistication of Internet users, and the low cost of creating and maintaining blogs. In the last several years, blogs have mushroomed in number and have achieved a measure of legitimacy and legal protection. At the same time, blogging is also creating its own unique brand of legal issues. Of specific concern to lawyers are the ethical issues surrounding a lawyer's use of blogs, particularly as blog-based discovery becomes more and more common. This article will provide an overview of a lawyer's obligations under the Model Rules of Professional Conduct and the corresponding Washington Rules of Professional Conduct with respect to blog-based discovery.
<1>The recent rise in blogs (short for “Web-logs”) has spawned a new world of considerations for lawyers and clients. At their foundation, blogs are Web sites that serve as online diaries and sounding boards. Blogs typically consist of posts, pictures, images, links, and other entries that can run the gambit of subjects from politics to sports to literature to personal materials. Blogging’s exponential rise stems from improvements in technology, the increasing sophistication of Internet users, and the low cost of creating and maintaining blogs. In the last several years, blogs have mushroomed in number and have achieved a measure of legitimacy and legal protection.2 Indeed, the increased use of blogs by news services, political commentators, and candidates has catapulted blogs into the national consciousness. The companies using blogs range from Google3 to General Motors4 to Southwest Airlines.5
<2>Of course, blogging is also creating its own unique brand of legal issues. Of specific concern to lawyers are the ethical issues surrounding a lawyer’s use of blogs, particularly as blog-based discovery becomes more and more common. Lawyers may utilize blogs through informal methods of discovery, such as monitoring a party’s blog, or through the traditional methods of discovery under the Rules of Civil Procedure, such as requesting information relating to blogs and bloggers. This article will provide an overview of a lawyer’s obligations under the Model Rules of Professional Conduct (“Model Rules”)—and the Washington Rules of Professional Conduct (“Washington Rules”), which largely adopt the Model Rules—with respect to blog-based discovery.6
<3>Parties have begun to see blogs as a potential source of discovery in litigation. Starbucks, for example, sought blog-related discovery in connection with its defense against a Fair Labor Standards Act collective action.7 More specifically, Starbucks sought discovery of any “Internet handles” used by any of the plaintiffs in making any postings about Starbucks.8 Starbucks argued such information would lead to the discovery of Internet postings it believed the plaintiffs had made regarding the number of hours they worked and the nature of their duties.9 The court denied the request until such time as Starbucks has established that the plaintiffs had made such postings.10 As the popularity of blogging continues to rise, it appears inevitable that discovery will increasingly involve investigation of Internet postings on blogs.11 To the extent such discovery occurs within the boundaries of the applicable Rules of Civil Procedure, there is likely little risk that use of blogs in this context will run afoul of the Model Rules or the Washington Rules.
<4>In addition to being a potential source of formal discovery, blogs are also emerging as fertile ground for informal discovery.12 Some examples of potential uses of blogs for informal discovery purposes include monitoring an opposing party’s blog for useful tidbits of information or searching for potential witnesses to support a case.13
<5>It is in this context that questions under Rules 4.2 and 4.3 of the Model Rules and Washington Rules arise. In particular, the use of blogs in this fashion raises the issues of whether blogging constitutes a “communication” for purposes of the Model Rules and Washington Rules and, if so, whether that communication runs afoul of the rules for communicating with a represented or unrepresented party.
<6>According to the American Bar Association, forty-seven states have rules of professional conduct relating to lawyers that follow the format of the Model Rules.14 In addition, thirty-nine states have generally adopted the comments to the Model Rules.15 Thus analysis under the Model Rules can serve as a useful guideline in addressing questions of lawyers’ ethical responsibilities.16
<7>The Model Rules and Washington Rules include two rules that generally govern communications by lawyers with persons other than their clients or potential clients. The first, Rule 4.2, addresses communication with persons who are represented by counsel, such as adverse parties in litigation:
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.17
<8>The second, Rule 4.3, addresses communication with persons who are not represented by counsel:
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.18
<9>In other contexts, courts have indicated that the rules regarding professional conduct of attorneys apply to online activity.19 With the background of these professional standards of conduct in mind, this article addresses application of these standards to issues that arise in blog-related discovery.
<10>Use of blogs by a lawyer for informal discovery could take several forms. A lawyer may make use of an opposing party’s blog for the purpose of gathering information about the party or the subject matter at hand by passively reviewing the party’s blog. Alternatively, the lawyer could take a more active role by posting content on a blog, initiating an original post, or posting a response to another post. These posts might be on the lawyer’s blog or someone else’s blog. As discussed below, these different uses of blogs in informal discovery raise different issues under the Model Rules and Washington Rules.
<11>Rule 4.2 states that a lawyer shall not “communicate” about the subject of his or her representation with a person the lawyer knows to be represented. Although there is not yet law on the subject, a passive review of a party’s blog seems to be less like a “communication,” because there is no direct interaction between the blogger who posted the information and the lawyer reviewing it. This use of a blog seems to be more comparable to a review of an unprivileged document voluntarily produced by the party.
<12>By contrast, an attorney who affirmatively and independently posts content on a blog related to a represented party in an attempt to gather information relevant to the subject matter of the party’s representation is likely to be in serious risk of violating Rule 4.2. Among other things, it is important to consider whether the affirmative post by the attorney is: (1) an original post; or (2) a response to pre-existing post. It is also important to consider whether the post by the attorney is on the attorney’s blog or on someone else’s blog.
<13>First, in contrast to a passive review of blog postings, an attorney who initiates an original post seeking to elicit a response from a represented party appears to fall squarely within the Rule’s prohibition against communicating with a represented party about the subject matter of representation without the consent of opposing counsel. While there is not yet law on this subject, the initiation of an original post by an attorney appears to be a “communication” with the represented party.20 Consider the following hypothetical. A plaintiff’s lawyer posts to a blog related to a company-defendant in search of current employees of the company-defendant who might be able to corroborate the plaintiff’s version of events—thereby circumventing the company’s lawyers. This active, affirmative act of posting in a forum known to be frequented by representatives of the employer-defendant (including managerial representatives) is likely to run afoul of Rule 4.2 because (1) a lawyer (2) is initiating communication with persons who may be representatives of the company, (3) requesting information about the subject matter of his representation, (4) with knowledge that the company is represented in the matter, and (5) without the permission of opposing counsel.21
<14>Second, if passive review appears to fall outside the scope of Rule 4.2, and an original posting appears to fall within the scope of Rule 4.2, the question of whether a responsive posting triggers Rule 4.2 remains. Comment 3 to Rule 4.2 of the Model Rules and the Washington Rules states:
The Rule applies even though the represented person initiates or consents to the communication. A lawyer must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is one with whom communication is not permitted by this Rule.22
<15>According to Comment 3, Rule 4.2 governs all communications with represented parties, whether initiated by the lawyer or not. Stated differently, according to the comment, Rule 4.2 applies any time the lawyer knows the party is represented by counsel.23
<16>Notwithstanding Comment 3 to Model Rule 4.2, some jurisdictions draw a distinction between a communication initiated by an attorney and a communication initiated by a represented party. For example, although the Texas Rules of Disciplinary Procedure (“Texas Rules”) are modeled after the Model Rules,24 the Texas rules do not include a comment similar to Comment 3 of the Model Rules.25 In this regard, it is noteworthy that the Fifth Circuit Court of Appeals held that a communication initiated by a represented criminal defendant to counsel for a co-defendant did not violate the Texas Rules, because the represented criminal defendant initiated the communication.26
<17>In jurisdictions such as Texas, an attorney posting a response to a represented-party’s post may be able to argue the communication was not prohibited by the applicable disciplinary rules, because the “conversation” was initiated by the represented party.27 Obviously, this argument will have greater force if the post by the represented party was on the lawyer’s blog, such that there is little doubt that the represented party knew that he or she was initiating a conversation with the attorney. By contrast, if the attorney is responding to the represented party’s post on his or her own blog or on a third-party blog, the argument loses considerable force, because the individual may not have intended to “initiate” a conversation with counsel for his or her opponent. This is particularly true if the attorney does not clearly disclose his or her identity in his or her responsive post.28
<18>Even if an attorney’s post constitutes a “communication,” there may yet be a question about whether the lawyer knew the party was represented.29 Consider the question of a corporate-defendant:
In the case of a represented organization, this Rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.30
<19>Given the inherently indeterminate scope of a corporate party, an attorney-blogger must be careful to ensure that his or her post does not solicit responses from an employee of the corporate party who “supervises, directs or regularly consults with the organization’s lawyer concerning the matter” or “has authority to obligate the organization with respect to the matter” or “whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.”31 Without such safeguards, the attorney runs the risk of violating Rule 4.2 if any such person responds to the post. This is particularly true with respect to the Model Rule and the Washington Rule, which do not draw a distinction between communications initiated by the attorney and communications initiated by the represented party.32 It is noteworthy, however, that neither the Model Rule nor the Washington Rule requires the consent of the organization for communications with former employees of the organization.33
<20>Even if the attorney-blogger is careful to ensure that no one who constitutes a corporate “party” under the Rules responds, the attorney-blogger is still required to follow certain procedures in communicating with unrepresented parties. More specifically, Rule 4.3 requires that the attorney: (1) not state or imply that he is disinterested in the matter; (2) make reasonable efforts to correct any misunderstanding by the person about the lawyer’s role in the matter; and (3) refrain from giving legal advice if he knows the person’s interests are in conflict with the interests of his client.34
<21>While formal discovery of blog-related information will inevitably increase as litigants and courts recognize the value of tapping into this new source of information, lawyers should proceed with caution in using blogs as a source of informal discovery about adverse parties and their claims. At the very least, lawyers should avoid initiating posts likely to be reviewed and responded to by represented parties and should always make their identity and connection to the matter at issue clear in all of their online communications.