Will My Advocate Opponent Impeach Me With My Own Legal Social Media?

Once a rarity, the topic of social media now seems ubiquitous on the agendas of CLEs and conferences across the land.  So much so, in fact, that entire seminars are now dedicated to the challenges faced by lawyers communicating on-line with both themselves and their clients.

At many such conferences, there are handfuls of doomsayers who warn of the great risks that attorneys take when communicating on-line with, well, anyone.  Some of these prognosticators of peril are in positions of authority in state bars across the country, and thus, their remarks prompt great reflection about such risks.  Generally, though, these speakers always seem to trot out the worst case scenarios, including the foolish Illinois public defender who blogged confidential client information (and even suggested in her online writings that she may have perpetrated a fraud upon the court).  There are a handful of other examples far outside the mainstream of lawyer bloggers who, for the most part, conduct themselves professionally.

At a recent conference at the North Carolina Bar Association headquarters in Cary, I heard a new and much more interesting critique of legal blogging.  A seasoned litigator panelist suggested that whenever she is to appear in court against another lawyer, she always investigates whether that opponent maintains a law blog.  If so, she will scour and scrutinize those posts to see if her opponent has ever taken a position opposite to the one advanced against her in the case at hand.  If she finds evidence of such, she can alert the tribunal that her opponent has taken a contradictory position on the relevant law in the past when writing, presumably objectively, on a legal blog. This is, for lack of a better term, impeachment in court by one’s own law blog.  Ouch.

But this does not seem to be a risk of legal blogging specifically but rather communicating one’s ideas and views generally.  For decades and decades and decades before the advent of legal blogs, lawyers delivered speeches, made presentations to trade and legal groups, and authored law review articles.  Sure, that may have been before everything was neatly placed online, easily searchable, and simple to locate in seconds, but there have always been ways in which one lawyer can find the writings of another if that lawyer knows where to look. Like most things, though, that task has been made far, far easier in the digital age, though it could be done before.

Further, what is the likelihood that one lawyer will be writing blog posts that can later be used against him in court?  Interesting question.  Certainly, if one were an author of, say, a defense oriented law blog, it is unlikely that the lawyer author will provide much fodder for plaintiff’s attorneys, and vice versa.  (If I ever square off in court against friend of the blog and Plaintiff’s lawyer Maxwell Kennerly in court, I doubt any of his past blog posts will help any of my defense arguments.). Perhaps there are questions of procedure that might be turned around on one depending upon the circumstances, but certainly there will always be some way for the lawyer blogger to differentiate his or her own thoughts on a reported judicial opinion which is later at issue in a case litigated by him/her.  Anything, after all, can be distinguished.

In sum, one should not leave these conferences fearing that any and all uses of the Internet will rain down discipline upon them.  Rather, an attorney who responsibly adheres to the rules of disciplinary conduct can blog to share his or her insights with lawyer readers or the general public.  Likewise, we should realize that the risk that we might later be “impeached” by our own past blog posts in court is too minimal to take into account.

(This post was originally posted on the now defunct North Carolina Law Blog on February 2, 2012).

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