My old pal Niki Black took time off from singing the praises of clouds to post at  Sui Generis about a New York State Bar Association ethics opinion on lawyers being mean to other lawyers.  For you sad people who aren’t New Yorkers, bear in mind that the NYSBA is a volunteer organization with no power whatsoever over anyone.  Unlike other jurisdictions, lawyer licensure and discipline is handled by the state, and the State Bar is only good for an occasional party, a CLE about the fabulous value of SEO and a way to sink money into a black hole of utter worthlessness. 

Still, the folks who like to join organizations like the State Bar and pretend that makes them matter have a Committee on Professional Ethics, where people can ask questions and they provide answers as if their thoughts on the issue matter.  As Niki notes, they recently hit on an  interesting ethics issue about blogging.

The question posed was:

May a lawyer host or participate in an internet blog established as a forum for lawyers to recount their experiences in dealing with an adversary whose past professional conduct is considered by them to have been unethical, harassing or abusive?

Seriously?  Someone thought it worth their time to establish a blog for the sole purpose of beating the crap out of another lawyer?  And others thought is sufficiently worthwhile to join in this endeavor?

The Committee’s response was short and to the point:

Assuming that the blog criticism is sufficiently accurate and in context not to run afoul of Rule 8.4(c), the question is whether there are any limitations arising from Rule 8.4(d) on a lawyer’s factually sustainable public criticism of another lawyer.  We believe there are none. 

Rule 8.4(c), as everyone knows, prohibits lawyers from engaging in conduct “involving dishonesty, fraud, deceit or misrepresentations,” and we know that would certainly never happen on the internet, where honesty and integrity invariably prevail.  The Committee throws in a caveat about using nasty language to attack a colleague, which it notes is “aspirational” and reflects a deep concern for those sensitive eyes and ears that flinch too readily.

There’s one huge issue with the Committee’s response, and they know it.

Rule 8.3(a) imposes a reporting requirement upon a lawyer who “knows that another lawyer has committed a violation of the Rules . . . that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer.”  To the extent that the negative information to be published about an attorney’s professional conduct is both significant and truthful, Rule 8.3(a) may require reporting such misconduct to a “tribunal or other authority empowered to investigate or act upon such violation.”

If there is a lawyer out there who’s conduct is so “unethical, harassing or abusive” that it warrants a blog for the sole purpose of providing a forum for lawyers to “recount their experiences,” then we have a more serious problem than whether the blog is ethical.

Are you people nuts?

Lawyers are perpetually accused of lacking the guts to out unethical practitioners within the profession, clucking about how bad some other lawyer is while being too chicken to grieve for fear that their fellow lawyers will think ill of them or that they live in a glass house.  There may well be a very real question as to whether another lawyer’s conduct is so horrific that it merits a grievance, and we shouldn’t be rushing to file complaints about others just because they pissed us off on a case or called us a mean name (unless you’re a very delicate flower, in which case you might consider getting an office next to the appellate division).

But when a lawyer’s conduct is bad enough to justify a blog dedicated to how much you hate him, it’s time to put on your big boy pants and do something a bit more meaningful about it.  We have a duty under Rule 8.3(a) to report our own, when there is a “substantial question” about the lawyer’s honesty, trustworthiness or fitness to practice.  If he’s blog-worthy, my guess is a substantial question exists.

The issues raised are foundational.  Don’t lie. Don’t deceive. Don’t misrepresent. Do lawyers really need to be reminded of this?  Or is this about using the internet, the “truth-free zone” where anything goes and anybody can say anything, whether about themselves or others?

Or is this a question about whether lawyers are weenies, telling the truth but fearful that saying mean things will violate the rule against being a hater?

As is often noted, the internet is nothing more than a tool, an additional (even if cool and addictive) piece of equipment in the lawyer’s arsenal.  It has nothing whatsoever to do with alleviating the obligation to act with integrity in all aspects of our conduct.  By the word “all,” I mean even on the internet.  Whether it’s to criticize that which demands criticism, or to tout that which might leave a reader confused as to the truth, the rules prohibiting “dishonesty, fraud, deceit or misrepresentations” are every bit as applicable to your online existence.

Do you really need to inquire of an ethics committee to know that, as a lawyer, you need to tell the truth?  And if some other lawyer is so utterly awful that you need to create a blog to show how much you hate him, then for crying out loud, protect the public and grieve about him. If he’s not that bad, then say your piece and find something more worthwhile to write about.