Standards of Practice and the Permissibility of Blawg Comments on Attorneys’ Legal Blogs

Standards of Practice and Blawg Comments

Here is the Legal Question:

If an attorney permits comments to be posted to his blog by readers of that blog, is he thereby violating the standards of practice of his bar association?

On just that question, Alexander Hartmann’s blog jurabilis – bLAWg points us to a vigorous fax and blog exchange between two German lawyers at Udo Vetter’s German “Law Blog” at udoslive.blogspot.com (November 27, 2003).

According to the exchange as posted by Vetter, German attorney Ute Rossenhoevel sent Vetter a fax requesting him to take a stand on the question of whether his allowing comments to his blog was in accord with the existing practice standards for attorney advertising in Germany. While admitting that these standards had been relaxed in recent years, Rossenhoevel refers to two German court cases dealing with attorney advertising, as follows:

Guest Books on Attorney Websites – Germany

1. Decision of the Regional Court of Appeals of Nuremberg (Oberlandesgericht Nuernberg), Germany, March 23, 1999, (Aktenzeichen 3 U 3977/98) – a decision involving the propriety of a “guest book” on the website of an attorney. The website JurPC of Professor Maximilian Herberger has created three “headnotes” for this German case which can be read here in German. Below is my unofficial unsanctioned English translation of those headnotes:

1. The operation of a homepage by an attorney is advertising within the context of ยง 43 of BRAO [BRAO, abbreviation for German Bundesrechtsanwaltsordnung, the German Federal Regulations for Attorneys]; the question of whether “advertising” is present is to be decided pursuant to objective criteria and not according to the ideas or intentions of the homepage operator.

2. A guestbook which is part of a homepage is part of the advertising function which attaches to the homepage itself.

3. A guestbook opens up the possibility for positive statements to be published on the homepage of the attorney about his professional activities; the permissible border of objective information [which can be published about the practice as permissible “advertising”] is thereby overstepped, regardless of the issue of whether a particular statement made [in the guestbook] is true or not.

Guest Books on Attorney Websites – Hungary

It is interesting in this regard to note that the Bar Association of Hungary has also issued practice standards for lawyers which prohibit guest books on attorney websites.

Internet Information on Attorney Websites – Germany

2. Decision of the Federal Constitutional Court (Bundesverfassungsgericht) of Germany, September 12, 2001 (Aktenzeichen: 1 BvR 2265/00) – concerning advertising text on a law firm internet page.

This decision is important because it was handed down by the German Federal Constitutional Court, which is the supreme court in Germany for constitutional questions. According to this case, the Federal Constitutional Court held that the regulatory bar authority could not prohibit factually true professionally-relevant text information on attorney websites since such expressions were guaranteed by Article 12 Section 1 of the German Constitution (Grundgesetz), a section which guarantees occupational freedom. Only information which was “misleading” could be prohibited by the regulating bodies.

Unresolved through that case of course is the question of whether a factually true “testimonial” or even the “possibility” of such a testimonial as a blog comment by a 3rd party is permissible on a blawg.

Propriety of Specific Legally-related Domain Names

I might add here another related internet case, the decision of the German Federal Court of Justice (Bundesgerichtshof or abbreviated BGH, Beschluss vom 25.11.2002 AnwZ (B) 41/02) involving the use of the domain name “www.presserecht.de” (Presserecht = Law of the Press) by an attorney. The case was also discussed in a publication of the Federal Bar Association of Germany. Essentially, the court held that an attorney using such a domain name and in fact presenting information on press law, would not be misleading the public into thinking he was the only attorney in this area of law or that he had some kind of monopoly of information on press law. Additionally, the court held that a particular domain name can only be granted once – this was in the nature of the internet – and it was not an unfair advantage that the priority principle “first come, first served” prevailed.

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Law Firm Websites and Blogs

Law Firm Websites and Blogs

Jerry Lawson at the eLawyer Blog has a posting on law firm website design entitled “Web Site Design As Necktie”.

David Maizenberg at AirBlogger concurs in part and dissents in part. Maizenberg thinks that Lawson is right in stating that blogs will be increasingly important for law firms. However, Maizenberg writes as follows about websites, stressing that they will (or should) maintain their importance:

“I tell my clients that they don’t merely provide legal services; their “brand” represents an experience: a bundle of activities and interactions that includes legal services, proactive counseling, responsive communications (extranet, wireless, etc), and information. Therefore, I try to ensure that their websites assert the firm’s brand (without sacrificing usability of course), so that eventually the experience the firm provides is closely associated with its brand.

Ultimately, the brand will instantly signal – within the confusion and chaos of the marketplace – a clear experience to potential clients.”

There is a lot of truth to that statement in a future where the fungibility of law firms will be an even bigger problem than now, especially since increasing percentages of work and client content will occur “neutrally” on the web.

See also David’s related April 2003 article on Reed’s Law at FindLaw, “A Lawyer’s Guide to Reed’s Law and the Power of Networks” discussing network interactivity and peer-to-peer networking.

Wheel Mouse Browser Tricks – Change Font Sizes and Get Quick Browser Navigation

Looking for more information on this topic, I was led to SCLLA Blawg (no posts since April 2003), which lists two mouse tricks for wheel mice under IE that are so useful that I post them here again:

Depress the keyboard key CTRL and move the mouse wheel forward or backward to resize the website page font – useful to reduce large script to smaller script for a better overview, or to increase the size of smaller script to larger script for better reading.

Depress the keyboard key SHIFT and move the mouse wheel forward or backward to navigate webpages visited during the current browsing session. This is a very quick way to to do this.

Law Firm Rankings

Law Firm Rankings

Law Firms in the US ranked by size through the National Law Journal (NLF) are referred to via LawSites.

For rankings of law firms by other criteria see the links at Internet Law Web

which include The Vault – Guide to the Top 100 Law Firms – and the Legal500.com – a list of Top 500 firms worldwide.

Knowledge Merger – British Library and Amazon

Knowledge Merger – British Library and Amazon

ZDNet reports a Reuters News article of November 25, 2003 that the British Library and Amazon had entered into an e-commerce deal, stating that:

“The British Library announced on Monday it had formed an alliance with Web retailer Amazon.co.uk to sell to the public catalog listings of over 2.5 million literary works from its collection.”

We see here that the alliance of online bookselling and knowledge “storage” as a product point to a world of the future in which information – including libraries – will cost bucks at every level.

It is an interesting development not only for itself, but also for the law, expanding the legal field to new kinds of “mergers”.

Libel Slander Defamation and Blogs

Libel Slander Defamation and Blogs

Stuart Levine in his Tax & Business Law Commentary has an October 30, 2003 posting entitled: ” Don’t Say I Didn’t Warn Ya’ “, referring to a potential libel case involving two blogs.

Libel, slander and defamation are always possible problems when we exercise our first amendment right to free speech and freedom of the press, both of which are not without limit. There are and must be bounds for everything in law.

Definitions of Libel Slander and Defamation

Essentially, defamation is an “attack” on the reputation of a person. It is called libel if it is in writing and is known as slander if it is spoken.

Explanations of Libel Slander and Defamation

See the following pages for more general orientation, definitions and explanation of the above-mentioned and associated terms:

Libel Defense Resource Center – includes an online 50-State survey of libel law

The First Amendment Handbook by The Reporters Committee for Freedom of the Press – it treats libel in depth as it affects the media

What is Libel? – short description from writing-world.com

Puerto Rico Criminal Libel Law Struck Down as violating the 1st Amendment (February 4, 2003)

Terms associated with libel cases

Defenses to claims of libel

Privilege and claims of libel

Libel laws generally in some countries other than the US: the UK, Canada, Australia, New Zealand, France, Germany

Liability Insurance for Defamation

If you are a blogger, make sure you have the right liability insurance,

as discussed by Attorney Ivan Hoffman,

and watch your words.

Online Liability for Defamation

Links to the fledgling law of “online liability” are found at:

The First Amendment Center

in an article by Jarrod F. Reich, “Internet & First Amendment: Online Libel” (Reich is still a law student at Vanderbilt)

There seems to be no question that every blogger is liable for what he or she writes on a blog.

Who May be Excluded from Liability

A the same time, the operating website, e.g. blogger.com, typepad.com, or radiouserland.com are seemingly thus far NOT liable for what YOU post online to your blog on those sites, at least based on the following commentary:

In a November 7, 2003 article by Douglas Lee, an Illinois attorney, entitled, “Obscure Internet libel provision hits the big time”, Lee discusses Section 230(c) of the Communications Decency Act of 1996 as interpreted by the 9th Circuit in Batzel v. Smith where a 2-1 court decision provides virtual libel immunity to website operators (as opposed to those who have actually written the materials).

What about bloggers who post 3rd-party materials to their blog, i.e. materials they have not written themselves, but which are libelous. Can they be held liable for this material?

As written by the Associated Press at “Bloggers win Libel Protection“, Eric Brown, who represented the winning defendent in the suit at Batzel v. Smith, stated:

“It clarifies the existing law….. It expands it in the sense that no court had really addressed bloggers, list serve operators and those people yet, certainly not on the level of the 9th Circuit Court.”

No Blogger Immunity – Bloggers CAN Be Sued For Libel

But there should be no blogger euphoria over Batzel v. Smith, nor does the case grant bloggers immunity,

according to the postings of Balkinization (“Can Bloggers be Sued for libel? – Of course they can“), Inter Alia and Unintended Consequences.

Read particularly what Balkin writes. I often do not agree with him on his political postings, but in his legal analysis he is simply superb.

22 Points on Blawgs

Law Weblogs – Elefant and Lawson

Via George M. Wallace and Declarations and Exclusions we were directed to Carolyn Elefant with Jerry Lawson and their MSBA Solo Conference blog (presentation for the Maryland State Bar Association Solo Day Conference) entitled “What Blogs Can Do for Solo & Small Firm Lawyers”.(11/15/03)

To Blawg or Not to Blawg? – 22 postings by Carolyn Elefant & Jerry Lawson

There are 22 separate postings – all of value for anyone thinking of starting a blawg – or even for someone who already has a blawg. I cite them in full here because blawging is a wave of the future and this presentation is simply too good to pass up without referring to it in detail – indeed, the fact that a special blawg was created for this presentation shows still another aspect of what blogs can do by specializing on a subject. Here are the links to the 22 postings:

1. So, What Can Blogs Do for You?

2. Overview

3. What’s a Blog and What Makes It Different?

4. Why Do Blogs Have Marketing Potential?

5. A Baker’s Dozen Great Things You Can Do With A Blog

6. Blogs As Knowledge Management Tools

7. Blogs As the New CLE

8. Blogs As A Source for Research and Expertise

9. Blogs As A Way to Improve Legal Writing and Analytical Skills

10. Blogs As A Tool to Combat Isolation of Solo/Small Firm Practice

11. Will Blogs Replace Power Point?

12. Blogs for Marketing – New Tool, but Old Rules

13. Blogs As Websites

14. Blogs for FAQs and Advice

15. Blogs as a Newsletter Alternative

16. Blogs As A Public Service

17. Blogs For Establishing Expertise and Credibility

18. Search Engine Visibility

19. Blogs Can Make You A Star

20. So Should I Start A Blog – What to Consider

21. Getting Started

22. Final Comments

What Elefant and Lawson need to add to this presentation are the technical but necessary aspects of blogging such as Permalinks, RSS, etc.

Then it will be perfect.

Legal Realism and Judicial Decisionmaking

LEGAL REALISM AND JUDICIAL DECISIONMAKING

DO JUDGES DO THE BEST THEY CAN?

Stuart Buck at The Buck Stops Here in his posting on the “Legal Realism” of Brian Leiter writes:

“Judges are doing what they perceive themselves to be doing most of the time, viz., applying the law as best as they can.”

DO JUDGES DECIDE CASES ON THE BASIS OF NON-LEGAL NORMS?

Actually, I find myself in accord on that point, although my agreement on a judge perceiving himself or herself as doing “as best as they can” does not totally exclude the relevance of Brian Leiter’s opinion that “what really explains [a judicial decision] is the judge’s commitment to non-legal norms (moral, political, economic).” (emphasis added)

Buck admits that the concept of “legal realism” applies to some degree in appellate decision-making since “cases selected for appellate review are disproportionately the ones where the legal reasons are indeterminate, and so the necessity for political and moral judgment is inescapable.”

I would not necessarily agree with that entirely, since it supports Leiter too strongly on an issue where he should not necessarily be supported in full.

Indeed, where I disagree with Leiter is on his judgment that “non-legal” norms DO decide judicial opinions, rather than “legal norms”, as should be the case under the rule of law.

PERSONALITY, CHARACTER, BACKGROUND, INTELLIGENCE

Surely no one would disagree with the statement that our views of legal norms are guided by the variables of our personality, character, background, and intelligence, and that our views on morality, politics and economics are additional variables for decisionmaking which – to my way of thinking, however – are merely products of the former, more important “personal” variables.

Put differently, we are what we are. A Supreme Court Justice is thus not necessarily applying non-legal political, moral or economic norms to hard cases but, as I see it, is quite clearly applying his personality to the seamless web of the law – but that is a different issue.

THE PERSONALITY AND CHARACTER OF JUDGES IS THE MAIN VARIABLE

Some time after graduating from Stanford Law School and inbetween stints in the corporate department of Paul, Weiss et al., I and several others worked together with the late Professor James Lake (the linked .pdf has a picture of Lake, a Harvard Law grad) of the University of Nebraska Law School on a project to alleviate appellate delay.

The project worked together with the Justices of the Nebraska Supreme Court (I note in passing that the current – not then – Chief Justice John V. Hendry was a former Kaulins family lawyer as a practitioner – a very good man, if I may offer this biased comment). The aim of our project then was to reduce the caseload of the Justices by having qualified personnel write drafts of opinions for them in “easy” cases, i.e. this was work similar to clerks. However, the main difference was that we worked for no particular Justice and were assigned cases at random. We also had no direct contact with the Justices on cases – for ethical reasons. There was to be no influence exerted in either direction. The legal norms were to decide.

The whole idea of the project was of course based on the idea that “legal norms” DO decide cases and my experience in fact indicated that this was generally so. In many of the appealed cases, the law was so clear that there was really no real question about the judicial outcome so that judicial decisionmaking proceeded along the legal norms found in our draft opinions, although each Justice always wrote their OWN opinion, even if it relied on our drafts. In cases which were not clear, however, the Justices were far more likely to take the complete writing of an opinion into their own hands, and it seemed to me that it was the personality and character of the judges which then surfaced predominantly in their decisionmaking and opinions, not necessarily their moral, political or economic views, which seemed quite similar. During this time I saw very little evidence that “non-legal” norms decided cases.

WHAT IS THE ORIGIN OF LEGAL NORMS?

Legal norms are derived from lessons learned and experience gained from events which occur in day-to-day society over the timeframe of millennia so that events and legal norms form a symbiotic partnership. But this does not mean that the non-legal norms are DETERMINATIVE of judicial decisionmaking. Rather, legal norms are INFLUENCED by the prevailing morality, politics and economics of the times, and the prevailing legal norms are thus similarly subject to change to accord with those changing times. Still, it would seem to me that judges nevertheless apply the law as they see it and that most of them surely would describe their work as serving “the rule of law”.

THE CONTINUITY OF LAW OVER TIME SPEAKS FOR THE JUDGES

Indeed, if judges ONLY applied non-legal norms, then law would be valid only for the short-term, guided by the serendipity of the present. The fact that law sustains itself over the long term and the fact that legal norms have developed and grown over thousands of years suggests that in fact, judges do prevailingly decide by applying “legal norms” and NOT by falling back on non-legal popular norms of the moment, at least in our Western society, where the “rule of law” is seen as the governing force.

The situation may be different in societies where the rule of law is not the basis of government and where men rule by fiat, religious conviction and the whim of the moment. Indeed, it would seem that THESE societies are the ones that are currently the enemies of the Western world.