Law Blogs, Free Speech and Professional Ethics

A New York Times article today canvasses recent professional discipline decisions flowing from over-the-top online comments by U.S. law bloggers that were held to be improperly critical of the Courts:

“When you become an officer of the court, you lose the full ability to criticize the court,” said Michael Downey, who teaches legal ethics at the Washington University law school.

And with thousands of blogs and so many lawyers online, legal ethics experts say that collisions between the freewheeling ways of the Internet and the tight boundaries of legal discourse are inevitable — whether they result in damaged careers or simply raise eyebrows.

Bottom line - don't refer to a judge as an "Evil, Unfair Witch," as did Florida lawyer Sean Conway, who was fined and reprimanded in April for an online outburst utilizing that phrase.

Or to state it more simply, if a lawyer ought not to make a specific comment in a public speech or debate, he or she ought not to say it online, either.

There is more on this topic, including a look at the applicable provisions of Ontario's Rules of Professional Conduct, in the latter part of my article Untangling Web 2.0 - A Survival Guide for (Modern) Legal Professionals:

The blogger often analyzes and comments upon decisions of Ontario’s courts and Tribunals. A temperate tone in such commentary is appropriate and mandated by this Rule.

While a law blogger may disagree with a particular Court’s ruling, I would suggest he or she has a professional obligation to present a well-reasoned and dignified argument in support of the view taken that expressly avoids any overt or oblique disparagement of the Courts or otherwise undermines the administration of justice.

In raising these points, I am cognizant of a particular Western Canadian writer, whose repeated blog references to certain provincial and federal tribunals as “kangaroo courts” have previously brought these rules to mind.

- Garry J. Wise, Toronto

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