Bloggers: Beware

From the ABA Journal, Legal Ethics Division:

Too Much Information: Blogging Lawyers Face Ethical and Legal Problems

Posted Sep 14, 2009, 09:52 am CDT; by Debra Cassens Weiss

Updated: Chalk it up to the age of Facebook. Blogging lawyers and judges have landed in trouble with legal ethics regulators and judges, while one blogging lawyer ended up as a defendant in a defamation lawsuit.

The lawsuit began on Sept. 14 in Tyler, Texas, Texas Lawyer reports. It ended Monday with a settlement, before jurors began deliberations, according to IP Law and Business. The plaintiff, intellectual property litigator Eric Albritton, claimed lawyer Richard Frenkel defamed him in anonymous postings on his Patent Troll Tracker blog, written when Frenkel was an in-house lawyer for Cisco Systems.

The suit said Frenkel defamed Albritton by accusing him of conspiring with a federal judicial clerk to alter documents to obtain subject matter jurisdiction in a patent suit. The defamation suit settled after the federal judge overseeing the case ruled Albritton could not win punitive damages unless he proved actual malice.

The New York Times chronicles the ethical travails of other legal bloggers, including Kristine Ann Peshek, fired from her job as an assistant public defender in Illinois and accused in a disciplinary complaint of revealing client confidences in blog posts with thinly disguised references. The Legal Profession Blog was first to report the case.

Peshek didn’t comment to the New York Times, but she told the ABA Journal on Thursday that she disagrees with the assessment that her clients could be identified through her blog. “I would not have posted any information in such a manner that I thought a specific client could be identified, without that client’s permission, or without the information being a matter of public record,” Peshek said. The blog posts identified clients by either their first names, a derivative of their first names, or by their jail identification numbers, according to the disciplinary complaint (PDF).

In other blog posts, Peshek complained that one judge was clueless and another was an ---hole. Criticizing a judge also landed blogging lawyer Sean Conway in trouble, the Times notes. In a conditional plea, Conway agreed to a reprimand for calling a judge an “evil, unfair witch” in a blog post. He claimed in a brief submitted to the Florida Supreme Court that his remarks were protected by the First Amendment, but the court affirmed the disciplinary agreement this April, the Times says.

The Times also cited these examples:

• A lawyer requested a continuance due to a death in the family, but the Galveston, Texas, judge checked her Facebook page and discovered news of a week of drinking and partying. The judge, Susan Criss, told lawyers about the episode at the ABA Annual Meeting.

• Lawyer Frank Wilson of San Diego lost his job and got suspended from practice for 45 days for blog postings he wrote as a juror.

Troll Tracker Defamation Trial Ends in Truce

by Joe Mullin; IP Law & Business; September 23, 2009

After four days of testimony, the "Troll Tracker" defamation lawsuit ended in a confidential settlement the day before the East Texas jury hearing it was set to begin deliberations.

Plaintiff Eric Albritton and defendants Cisco Systems and Rick Frenkel -- a former Cisco lawyer who blogged anonymously as the Patent Troll Tracker -- settled the case Monday night, shortly after Judge Richard Schell ruled that the jurors would have to find "actual malice" on the part of Frenkel and Cisco in order for Albritton to win punitive damages from the tech giant.

None of the lawyers involved in the case would comment on the settlement Monday. Cisco issued a statement Tuesday morning in which it said the dispute between the parties "has been resolved to their mutual satisfaction, and Rick Frenkel and Cisco apologize for the statements of Rick Frenkel on the Troll Tracker blog regarding Eric M. Albritton." Frenkel is now of counsel at the Silicon Valley law firm Wilson Sonsini Goodrich & Rosati.

The jury, which had been scheduled to hear closing arguments and begin deliberations Tuesday, was not in court Monday as Schell considered a motion by Cisco and Frenkel for judgment as a matter of law. In that motion, the defendants argued that Albritton didn't have enough evidence to warrant proceeding to a jury verdict. Schell denied all of the defendants' arguments, except for one: that the plaintiffs had to prove "actual malice" in order to collect punitive damages.

"Actual malice" -- a high standard for a defamation plaintiff to meet -- was established by the Supreme Court in its historic New York Times Co. v. Sullivan decision. To prove "actual malice," a plaintiff must show that the defendant either knowingly published falsehoods as facts, or showed "reckless disregard" for the truth. In general, a plaintiff must be a public figure to trigger the "actual malice" standard. Someone considered a private figure must only prove that a publisher was negligent in its actions in order to win a defamation claim.

Schell had ruled earlier during the four-day trial -- at which Frenkel, Albritton and Ward all testified -- that Albritton was a private figure, and could therefore win his case by proving that Cisco and Frenkel had been negligent. Earlier rulings barred Albritton from seeking damages to his reputation, leaving him to pursue damages for "mental anguish" or, if he proved "actual malice," for punitive damages against Cisco. On Monday, Schell ruled that while Albritton was indeed a private figure, Frenkel's blogging was about an issue of public concern (the work of the court clerk's office), which meant Albritton had to meet the higher standard of "actual malice" in order to qualify for punitive damages.

Throughout the litigation, Frenkel maintained that the two blog posts at the heart of the case, which he wrote about a changed date in the docket in Albritton's ESN v. Cisco patent infringement suit, contained both true facts and constitutionally protected opinion about "abusive" patent litigation in East Texas. On the witness stand, Frenkel apologized for referring to the Eastern District of Texas as a "Banana Republic" in one of the offending posts, which he later revised to eliminate that reference.

A second defamation lawsuit, Ward v. Cisco Systems, has been brought by T. John "Johnny" Ward Jr., another Eastern District patent heavyweight representing ESN in its patent suit against Cisco. That lawsuit has dropped Frenkel as a defendant personally, and continues only against Cisco. It is scheduled for trial in early 2010. The ESN v. Cisco suit that launched the dispute also remains active.