Summer Associates With Blogs

A law student blog called Ambivalent Imbroglio posts a question, should summer associates blog about their experiences working at a law firm?  From the perspective of a risk-averse professional responsibility teacher, the answer is clear:  No, no, no.  This student says his or her PR course didn't mention blogging, but that's probably not exactly true.  The instructor may never have used the word "blog," but surely the point was made repeatedly that any intentional disclosure of confidential information is a violation of the duty of confidentiality, as stated in MR 1.6 and also in general agency law.  That goes not only for explicit disclosures, but also thinly anonymized hypos that effectively reveal confidential information. 

This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to discovery of such information by a third person.  A lawyer's use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved.

MR 1.6, cmt. [4].  Remember, too, that confidentiality covers all "information relating to representation" of the client, not just communications subject to the attorney client privilege. 

What about the exception for information that is generally known?  Is that fair game for blogging?  The "generally known" exception is not expressly part of MR 1.6, although I think it's a reasonable interpretation of the definition of confidential information.  Section 59 of the Restatement does contain an exception for generally known information, and also provides a useful note in comment d:  "A lawyer may not justify adverse use or disclosure of client information simply because the information has become known to third persons."  Information is generally known if it is "contained in books or records in public libraries, public-record depositories such as government offices, or in publicly accessible electronic-data storage." 

The best piece of advice, though, comes from a large-firm partner, commenting on this post:

I would be VERY, VERY careful about blogging your summer experience in any meaningful way. Obviously, steering clear of client confidences and matter-specific information is a given, but that's just a baseline. Speaking from experience on both sides at two large firms, hiring decisions can turn on the smallest things, and the single biggest candidate-killer out there is the "bad judgment" tag. If you show me that you're smart and hard-working, I can fix your analytical deficiencies or bad writing over time. If you show me you're able but lazy, I can help you improve your work ethic. If you show me bad judgment, I show you the door.

That's basically my reaction, too -- there's very little upside to blogging about one's summer experiences.  Sure, it's a way to procrastinate, but so is sending e-mail to your friends or playing Minesweeper.  Besides, and with respect to the firms and 2L summer associates, the experience isn't all that interesting.  On the other hand, the potential downside risks are substantial since hiring decisions (and, I'd add, evaluations of associates already at a firm) depend on evaluations of the all-important, but somewhat ineffable quality of "judgment."

Comments

[John Steele]

Ditto what Brad said. Just say "no."

[Eric Goldman]

I agree with Brad's conclusion that there's little upside to blogging as a summer associate, but I disagree with his statement that the "experience isn't all that interesting." In fact, there's usually lots of good gossip floating around a large summer associate class, typically involving sex, alcohol or the firm's (or its clients') dirty laundry. Airing any of this in a public manner is problematic, both from a rules standpoint and a a "judgment" standpoint.

For example, it seems like every summer, some summer associate writes an email/voicemail where the person overzealously boasts about something (sexual conquests, alcohol imbibing, ability to squeeze the firm for money, ability to avoid work, etc.). Once made public, these boasts tend to be fatal to the person's short-term (and long-term?) employment and usually harm others as well. In other words, the most interesting stuff is exactly what you should NOT be blogging about!

Eric.

[Cathy]

If the word "blogging" were not mentioned, if the question had been simply "what is ok to talk about from the summer associate experience," what would your advice have been then? Gossiping about co-workers? That seems ill-advised in any context. Discussing clients' cases? Rule 1.6 frowns upon that even among as small an audience as friends and family.

I suspect you wouldn't suggest that summer associates completely sequester themselves and never speak a word about the experience to anyone, ever. Surely when they leave for work every day they do not disappear into a black hole, from which no information - not even the color of the office walls - is permitted to emerge.

In fact, such secrecy would be bad for the profession. Strong policy arguments can be made for making lawyering seem a lot like less of a black box, for the benefit of both future and current practitioners as well as the public. How the practice of law really works, and the general policy issues that the practice will inevitably raise, should be able to see the light of day. Blogging simply is more efficient way of communicating these points than having numerous individual conversations, which in many situations would otherwise likely be considered completely acceptable. (I presume, but please correct me if I'm wrong.)

So it would be more helpful if instead of issuing a broad interdiction on blogging, you could instead provide guidelines for helping summer associates evaluate which of the types of information they might be inclined to disclose would either further the cause of transparency, or instead run afoul of the ethics rules (or worse, the dreaded label of "bad judgement.") All summer associates - all LAWYERS - need to know this, whether they are bloggers or not.

[Brad Wendel]

Re Cathy's comment, of course associates gossip about co-workers, but that's different from providing information about "how the practice of law really works." That latter category of information is going to be bound up with "information relating to representation of" particular clients, which is protected by MR 1.6. Transparency is an important value with respect to government institutions, and I'd be the first to agree with the progressive argument that powerful institutions like corporations and law firms have a quasi-governmental role. However, even "real" government agencies have interests in confidentiality that cut against the value of transparency. That's the principle underlying the D.C. Circuit's decision today in the Cheney energy task force case.

We can argue that, with respect to any governmental or quasi-governmental institution, the governing law has the balance of transparency vs. confidentiality out of whack. In fact, that's an argument the legal profession has been having with itself for years. Thus, I'm not opposed as a matter of policy to arguments for transparency. But the policy arguments are just that -- policy arguments. The existing law governing lawyers is strongly pro-confidentiality (even after the Aug. 2003 amendments to MR 1.6), and as a result lawyers must be extremely careful not to reveal information relating to representation of clients.

The best guideline I can offer is the one in the original post, from the comments to Rest. 59: If something is in a publicly available source, it's generally known and fair game for disclosure. The post at Ambiguous Imbroglio has a similar rule of thumb, which I think gets it about right: "Generally, it seems that if you're doing cases that play out in public proceedings, you can write about anything that anyone who might have happened to be in court would have learned or observed just by being there and paying attention. This means that it's harder to talk about cases pre-trial, but once there are proceedings in public, there is more that's safe to say. I guess for now the rule I'll be following when I start my job next week is that if I were a reporter on the criminal beat and I could have learned something in that capacity, then it's bloggable. That's still a little vague, but it seems like a good rule of thumb to follow for now."

Eric's comment made me laugh out loud, because it is SO accurate. Any population of summer associates is bound to contain at least one person who will act like a jackass at some point. The smart strategy there is to stay as far away as possible from this person's self-immolation, as opposed to blogging about it.

[David Hricik]

I might be able to help on Cathy's question since in a former life, I wrote policies for firms that summer associates had to sign upon entering and leaving the firm. I know that firms use language right out of 1.6 -- "all information relatingo to a representation" must be kept confidential -- and so that's the first part. Now, does 1.6 include who is sleeping with whom, or who threw bricks off of the building (real story), or which summer clerk showed up at 6 am at a partner's house, so drunk from the night before that he thought it was 6 pm, and time for a party there (true story), or which summer clerk threw up on the hiring partner's shoes (true story), or which partner groped a summer associate's breasts while she was sitting at a "black jack" table in a huge firm party (true story).... no!

But... blogging or e-mailing or chatroom can be reported back and the downside to "gossiping" in electronic format is much worse than telling friends at a bar these stories. If I were a summer clerk, I'd blog anonymously if at all, and would go nowhere near 1.6 issues.

David