Ethics of Lawyers on the Internet

The Cleveland Plain Dealer agreed to reveal the identity of one of its frequent anonymous commenters.  The anonymous commenter was a judge who posted under the name “lawmiss” and commented on some of the cases in her court.  Judge Shirley Strickland Saffold reacted by suing the newspaper for $50 million.

I will leave the ethics of the judge commenting on her own cases to the legal ethicists, but the suit raises some interesting points.  The suit, filed April 7, 2010, can be seen here.

You can read the ABA Journal article here.  The judge’s comments included:  

“All of these criminals committing crimes against women must stop. None of them should get out of prison, EVER.”

“Rufus Sims (lawyer of Sowell and of a bus driver convicted of vehicular homicide) did a disservice to his client. If only he could shut his Amos and Andy style mouth … This was not a tough case, folks. She should’ve hired a lawyer with the experience to truly handle her needs. Amos and Andy, shuffling around, did not do it.”

The newspaper allegedly voluntarily gave up the judge’s identity after relations between the judge and some of the reporters cooled. 

The lawsuit makes claims for breach of the paper’s privacy policy, fraud, invasion of privacy/false light and a claim for defamation. Trying to enforce the privacy policy would also mean any other terms, such as the disclaimers and limitation of damages in the Site Usage Agreement, might also apply to the claims.  There is also a serious question as to whether the policy ever really promised anonymity.  The pertinent part of the paper’s privacy policy states:

 We may also provide access to our database in order to cooperate with official investigations or legal proceedings, including, for example, in response to subpoenas, search warrants, court orders, or other legal process.

In addition, we reserve the right to use the information we collect about your computer, which may at times be able to identify you, for any lawful business purpose, including without limitation to help diagnose problems with our servers, to gather broad demographic information, and to otherwise administer our Website.While your personally identifying information is protected as outlined above, we reserve the right to use, transfer, sell, and share aggregated, anonymous data about our users as a group for any business purpose, such as analyzing usage trends and seeking compatible advertisers and partners.The limitations of liability and disclaimer of warranties are all contained in the site’s User Agreement.The judge claims some of the posts were done by her daughter.  An interesting issue is whether that means the daughter can be dragged into the case for violating the site’s Usage Agreement which prohibits accessing the site through someone else’s login.  Will there be a tortured Lori Drew Computer Fraud and Abuse Act claim against the daughter for violating the site’s terms? 

So what can be learned from this?  I’m talking to newspapers and not judges because the lesson to judges seems obvious.  The newspaper’s privacy policy is important and there should be no promise or guarantee of anonymity.  Preserving anonymity is a good goal, but stay away of from any contractual promises or guaranties. 

You can read the Newsroom Law Blog about the ethics of this situation from the paper’s side here.  You can read more on the story from the Technology and Marketing Law Blog here.

A Quick Personal Aside:  I have been absent for awhile because of back-to-back jury trials.  In my business litigation practice, I have a jury trial about once every year and a half.  Over the last month, I’ve had two back-to-back with several more scheduled over the next six months.  The first went to verdict and the other settled as we were picking the jury.  People have asked how the economy has impacted our practice and it seems to me that parties are less willing to settle, but more willing to pay more for attorneys to take cases to trial.  

I will present a one-hour CLE on the Ethics of Lawyer on the Internet at the South Texas College of Law’s Just Ethics series tomorrow, October 9, 2009, beginning at noon.  You will get one hour of the always-needed CLE ethics credit for what I hope is an entertaining interactive discussion of the pitfalls of email, online videos, blogging and social media, etc.  Walk-ins are welcome.  Send me an email if you just want the paper.  It was too big to upload to the blog. 

It’s been too long since I last posted here.  One of the reasons is I have been working on a Continuing Legal Education paper for the Houston Bar Association on the “Ethics of Lawyers on the Internet” that was due last night.  I will be making the CLE presentation on Thursday, March 26, 2009, at 8:00 a.m. at the Junior League here in Houston (I hope they serve their orange cinnamon rolls and someone saves me one).  Send me an email at tcrabtree@lrmlaw.com if you would like a copy of the paper. 

At the presentation, I plan on using real world examples of lawyers using website videos, podcasts, blogs, Twitter, LinkedIn, Facebook and other web 2.0 communication methods and their ethical implications.  If you have any questions about the ethics of lawyers on the internet, let me know and I can incorporate that in the presentation or supplement the paper.  If you have seen good or bad examples of lawyers on the internet, let me know that too and I may use those in the presentation.