Who’d a thunk it? People write scholarly articles about the ethics of legal blogging!

(We probably should have thought about that before we started this gig, huh?)

Anyway, Rachel Lee’s student note in the most recent Stanford Law Review is titled “Ex Parte Blogging: The Legal Ethics of Supreme Court Advocacy in the Internet Era.” (In the printed edition, it’s at 61 Stan. L. Rev. 1535 (2009). Ms. Lee frets that lawyers representing litigants in the Supreme Court will publish blog posts about their cases immediately after argument, and justices or clerks may read those arguments and thus have “ex parte” contact with litigants. The author worries that this ex parte blogging may threaten “the impartial administration of justice and will systematically disadvantage some litigants.” Thus, she concludes, “the legal profession should consider regulating ex parte blogging, despite the contributions that counsel for parties and amici might make to public discourse about constitutional and legal issues.”

Hmmm . . . we never thought about that before.

But we’ll think about it now:

First of all, we object to the very concept of “ex parte” blogging. That term connotes one side making some sort of sneaky, secret contact with a court, without the knowledge of the other side. Sorry, but that ain’t blogging. Everybody in the world can read what we say. Anybody can respond to what we say. On the spectrum of legally-related things to do, blogging has to be just about the least secretive activity imaginable. So right from the beginning, the Note puts the rabbit in the hat by slapping a pejorative label on what legal bloggers do.

As for the merits, on the one hand, Ms. Lee’s concern is plainly too narrow. If it should be unethical to blog between argument and decision about cases pending in the Supreme Court, then surely it should also be unethical to blog between argument and decision about cases pending in state supreme courts, or in the federal trial and appellate courts – any court, for that matter. After all, why would the Supreme Court (with all the resources at its command) be more susceptible to influence from a lowly blawg like ours, compared to some other, less exaulted, judicial body.

So the thesis of this student note doesn’t address the entire problem, if indeed there’s a problem at all.

(N.B.: The thesis of the Note, as written, doesn’t relate to anything that we’ve ever done on this blog. Neither of us has appeared in the Supreme Court on behalf of a party or an amicus curiae and then published a blog post about the case between the time of argument and decision.)

If the thesis of the Note is correct, however, then it should be broader. It should apply to publishing blog posts between argument and decision for all cases pending in all courts nationally.
That rule, of course, would put us out of business.

(We heard that! Stop cheering.)

It would put out of business all legal blogs by lawyers who represent clients in any court. Law professors could still blog, but the rest of us ink-stained (electron-zapped?) wretches would have to close up shop.

Between the two of us, we’ve had preemption motions pending somewhere — in a state or federal trial or appellate court — on every day since we started publishing this blog 2 1/2 years ago. We’ve had Daubert motions pending on many days, and learned intermediary motions pending on many days.

We’ve never tried to influence the result in any particular case that one of us was defending, but we’re surely trying to influence generally the public debate about the issues that we discuss: That’s one of the reasons for publishing this blog. And we like to think that we’re improving the public discourse by sharing our ideas.

Another reason we blog is to ensure that everybody on the defense side has access to new and cutting edge arguments (and decisions) that might help win cases. That’s why we devote a lot of time to what’s being argued in Supreme Court briefs. Given the influence of precedent under the rule of stare decisis, the more the defense wins – wherever those wins occur and whoever wins them – the better off all our clients will be in the long run.

Maybe it’s an oversight, but the two of us have never actually sat down and discussed what “ethical” rules we would apply to our blog posts, but we try to be reasonable about it. More or less unconsciously, we’ve sort of fallen into these rules:

(1) We’ve never hidden our bias. We represent drug and device companies for a living. We like what we do. If you’re looking for pro-plaintiff blog posts, you’ve come to the wrong place.

(2) We generally steer clear of cases that we’re working on. But sometimes Bexis will recuse himself from writing about a particular case that he’s working on, and Herrmann alone will publish a post about the case, or vice versa. We do that both out of a sense of fairness and to avoid inadvertently offending the clients for whom we work. We’re not sure it makes much difference in terms of the substance of a post, anyway, since we pretty much think in lockstep about the defense of these cases. But unless there’s a good reason not to, we generally steer clear of cases that we’re working on.

(3) If we do post about a case that we’re working on (because, for example, it creates an important precedent that our readers should be aware of), we disclose that we’re working on the case.

But all of that is driven by our sense of what’s right, not by any code of ethics that is (or, to our eye, should be) imposed on us.

The Stanford Note worries that sophisticated litigants have a better sense of how to influence the Supreme Court and so might benefit disproportionately from just-in-time blogging, if the rules of ethics don’t prohibit it. We don’t mean to be crass here, but, if that’s a problem, it’s the gnat on the elephant’s rear.

The rich, sophisticated litigant retains specialized, expensive Supreme Court counsel, gives that counsel an unlimited budget to write a brief and prepare for argument, runs counsel through a series of mock arguments, and then has a known and respected advocate appear before the Court.

The poor litigant retains Joe Sixlawyer who dictates and files a piece of garbage and then embarrasses himself at argument.

And we’re gonna worry about blog posts?

Forgive us for not being overly concerned — at least about the blog post part.

Throughout the note, there’s an undercurrent that, when one side (particularly someone already “advantaged”) comes up with something that might give it an “extra” benefit, that side should be penalized and silenced. Is there something in the water out there? We saw the same mindset in Kasky v. Nike, where the California Supreme Court gave the green light to suits against companies under the states consumer protection statute where the company had the audacity to defend itself against politically oriented attacks.

We beg to differ. We think the answer is more, not less, speech. If, say, the Stanford Law Review is concerned that blawgs disproportionately disadvantage particular groups, let them start their own counter-blog. On their blog, they could advocate for the positions of death-row inmates, criminal sex offenders, evicted tenants, drug addicts, would-be beauty queens, or GOP moderates – anybody and everybody from society’s poor and downtrodden classes. Thus they can pursue blogging equality affirmatively, rather than by tearing down the other side.

On the other hand, maybe some bar association or state supreme court somewhere could adopt the thesis suggested by the Note and apply it not just to the Supreme Court, but to all pending cases.

It’s true that that would put this blog out of business.

But at least we could get a decent night’s sleep.