Can law bloggers be subjected to Bar discipline for misstating facts or law?

by Paul Alan Levy

On Friday morning, a panel at the annual meeting in New York of the Association of Professional Responsibility Lawyers will be discussing an issue dear to the heart of blawgers who discuss subjects that make powerful figures in their own areas uncomfortable – to what extent should lawyers be subject to professional  discipline for speech that they make not in their representational capacity, and to what extent does the First Amendment bear on that question?

Law bloggers must always worry when they criticize powerful local interests who have clout with the bar and their supervising courts; those whom they criticize often do not hesitate to bring bar charges to harass their critics even if they know that cannot succeed with a lawsuit (or, perhaps, they don't want to pay the costs of litigation). Last year, for example, a personal injury lawyer in Michigan, Stephen Gursten, had to fend off the bar charge brought by a member of the bar grievance commission for publishing a blawg article criticizing her for being a professional witness for insurance companies and, he suggested, shading the truth in her testimony.  Her time for suing for defamation was past — and besides, truth is a defense and perhaps she did not want to risk either discovery or an adverse decision what might ruin her value as an expert witness.  So, instead, she used her clout to make him run up legal expenses defending his law license.

Although cases like Gursten's are what worry me, I gather that the reason I am on the panel is a blog article I wrote criticizing, as a cheap political stunt that was likely to be counterproductive, a bar charge filed by a group of progressive law professors who teach in the area of professional responsibility against Kellyanne Conway claiming that by using the term “alternative facts” she was excusing lying in the political arena and hence showing that she was not fit to be a member of the bar. One of the authors of the bar charge is also on the panel.  Should be fun (I have suggested it be live-streamed; not sure that will happen).  The agenda for the meeting is here.

0 thoughts on “Can law bloggers be subjected to Bar discipline for misstating facts or law?

  1. Edwin Bell says:

    This is just another example of the state bar acting like a NAZI Gestapo control organization. Case law has been managed for years to stopping class actions and contorting legal decisions that favor consumers. Our entire judicial system is totally influenced by an ingrained culture of corporate corruption.
    The future of America and perceived justice is destine to change precipitously due to corruption. Corporations could find themselves living in a future of consumers turning away from capitalism and wall street banks full of criminals. We must all vote with our dollar…collectively boycotting one giant American corporation for 90 days would be paralyzing.

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