Legal blogging ethics in this month’s ABA Journal

American Bar Association members, be sure to check out the October 2005 issue of the ABA Journal, containing the article “Watch What You Say” (p. 59) which features, among others, noted law blogger Ben Cowgill. An online version of the article (minus Ben’s picture which appears on p. 62 of the magazine) is available here.

In the Land of the Midnight Semantics

(I hope that loyal readers of this weblog will forgive a brief foray off-topic.)

In the recent case of Crane v. State, — P.3d —-, 2005 WL 1926464 (Alaska App., 2005), the Alaska Court of Appeals was asked to examine whether there are substantive differences between the terms “counselor” and “attorney”.

Petitioner Crane was charged with drunk driving. While awaiting trial, he asserted that the court had no jurisdiction over him because he could not obtain the assistance of counsel, as there were no “counselors at law” in Alaska. He contended that there is a legal distinction between “counselors at law” and “attorneys” and that there were no “counselors at law” available to him because Alaska only licenses “attorneys”.

In rejecting Crane’s arguments, the court issued a somewhat lengthy opinion examining the history of the relevant terms. It discussed the etymology of the various words, looking to their origins in French, and also the ways in which the terms had been used in early sources such as the Blackstone Commentaries.

The court noted that the common law did in fact distinguish between “attorneys” and “counselors at law”, but concluded that this distinction no longer exists in Alaska. Instead, attorneys perform both functions. The court further noted that in 1976, the legislature repealed the statute that specified the procedure for admission to the practice of law in Alaska, but gave rule-making authority to the Board of Governors of the Alaska Bar Association, so that the admission procedure could be specified by court rule.

Crane v. State, — P.3d —-, 2005 WL 1926464 (Alaska App., August 12, 2005).

School board email did not violate Sunshine Law

Chris Heather, a member of Ohio’s Northwest Local School District Board of Education, wrote a newspaper column criticizing past actions of the board, calling on the public to support two non-incumbents in the next election. Bill Lambert, another member of the board, wrote an email to two other school board members discussing factual inaccuracies in Heather’s letter and suggesting that the other members draft a response.

Plaintiff Haverkos, who as the court noted “seem[ed] to have a long history of opposition to the school board,” filed suit against the board alleging that the email communication and subsequent actions by the members of the board violated Ohio’s “Sunshine Law,” R.C. 121.22 et seq. That law requires, among other things, that public officials conduct all deliberations on official business only in open meetings.

The trial court had held that sending the email was a violation of the Sunshine Law, and had awarded summary judgment in Plaintiff Haverkos’s favor. At issue on appeal was whether the email could be considered a “discussion” under the Sunshine Law and thus subject to the law’s provisions. The appellate court reversed the trial court, holding that Ohio’s Sunshine Law does not cover email communications. Furthermore, the subject of the email was limited to election politics, not official school board business.

Haverkos v. Northwest Local Sch. Dist. Bd. of Educ., 2005 Ohio App. LEXIS 3237 (Ct. App. Ohio, July 8, 2005).

Controversy over law blogging in Kentucky

Ben Cowgill, author of the excellent Legal Ethics Blog, reports that he has been facing resistance from the Kentucky Attorney’s Advertising Commission over the very existence of his weblog. Under the relevant Kentucky rule of professional conduct (7.02), each time a lawyer advertises legal services in the state, he or she is required to submit a copy of each advertisement to the Commission and pay a $50 filing fee. The Commission also requires an additional filing fee each time the advertisement is modified.

The Commission has apparently expressed that law-related weblog postings fall under this rule, as the definition for “advertisements” includes any communication that contains a lawyer’s name “or other identifying information.” As Mr. Cowgill correctly observes, “it would be practically impossible for a Kentucky lawyer to publish a law-related web log if he or she were required to pay a $50.00 ‘filing fee’ each and every time the content of the blog is modified.”

Communications between Mr. Cowgill and the Commission continue. This controversy is an interesting and compelling example of “antiquated” regulations being outpaced by the positive consequences of modern forms of communication.

Read more about the matter at f/k/a and at The Legal Underground.

Statements on law firm website result in attorney suspension

New Hampshire’s Supreme Court Committee on Professional Conduct accused the respondent of violating New Hampshire Rule of Professional Conduct 7.1, which provides that a lawyer is prohibited from making a “false or misleading communication about the lawyer or the lawyer’s services.” Under the rule, a communication is false or misleading if it “contains a material misrepresentation of fact or law.”

The website for the respondent’s law firm “suggested that he had experience in helping small businesses file direct public offerings, although [he] had only drafted offerings that had never been filed.” The referee appointed to the case determined that the language on the website “advertised [the respondent’s] expertise in financing and raising capital even though ‘he did not have any special training or experience in securities law.'” The referee determined that such statement was a violation of Rule 7.1, and the state’s Supreme Court affirmed the decision.

Richmond’s Case, — A.2d —, 2005 WL 1048105 (N.H., May 6, 2005).

E-mail to witness gets attorney’s license suspended

In connection with another lawyer’s disciplinary matter before the Director of Minnesota’s Office of Lawyers’ Professional Responsibility, respondent Soronow sent an e-mail to a witness in the matter, asking the witness not to cooperate. Soronow also made “misleading statements” on his own law firm’s website. As a result of this conduct, the Director of the Office of Lawyers’ Professional Responsibility instituted a disciplinary action against Soronow for violations of various rules of professional conduct. Soronow agreed to a minimum 30 month suspension and was ordered to pay the costs of the disciplinary proceedings against him.

In re Disciplinary Action Against Soronow, — N.W.2d —, 2005 WL 851932 (Minn., March 28, 2005).

California court upholds medical board’s authority to post physician disciplinary information

The California Court of Appeal has upheld a trial court’s denial of a petition for writ of mandamus which would have ordered the board to remove from its website information about the plaintiff physician’s past disciplinary record. The physician had argued that certain California statutes (Bus. & Prof. Code §§ 803.1 and 2027) did not permit the board to post information on its website pertaining to the plaintiff’s completion of a probation period. The court held that the plain meaning of the statutes demonstrate that the board is specifically required to post on the Internet information about a physician’s disciplinary history. Furthermore, despite an apparent drafting error in the enacted version of §2027, the court held that a review of the legislative intent also supported the conclusion that posting the disciplinary history was mandatory.

Szold v. Medical Bd. Of California, — Cal.Rptr.3d —, 2005 WL 589433 (Cal.App. 4 Dist., March 15, 2005).