Today, we have a thoughtful article from Venkat Balasubramani of Spam Notes.

Lawyers are expected to be advocates for their clients, but this zealous advocacy should be tempered by a lawyer’s duty to serve as ethical officers of the court. In theory, overreaching lawyers should be held in check by opposing attorneys, however sometimes the victim of an overzealous advocate is not able to afford counsel. Other times, even though a party has counsel, the party would rather not go through the time and trouble of contesting an issue, or lacks the resources to fight a battle with a far bigger opponent. Public interest organizations sometimes get involved in a dispute if a lawsuit raises an issue which touches on their mandate. However, their resources are limited and they can only represent a handful of worthy parties. Often, a lawsuit or claim may not come to their attention. The internet has changed the playing field. In the modern era, the internet functions as a powerful force in bringing what are viewed as overly aggressive positions or claims to light, and mobilizing opposition. In lawyer-speak, the internet functions as a giant Rule 11 committee. (Rule 11 is the rule most associated with sanctions imposed on a lawyer for taking an untenable legal or factual position.)

Consider a few recent examples:

BlockShopper: BlockShopper is a website which describes itself as a “local news and market data service for current and aspiring homeowners”. It ran a few items noting purchases of real estate by associates of a large Ohio-based law firm (Jones Day). In the process it linked to the online biographies of the lawyers, and to the website of the firm. Jones Day sued, alleging trademark infringement. Ultimately, the lawsuit settled on terms which were viewed as favorable to the plaintiff, but the ensuing negative publicity was something that Jones Day may not have anticipated. The lawsuit caused an uproar on the internet, and caused public interest groups to try to get involved. As noted by Slate, one lawyer opined that the lawyers who brought the lawsuit against Blockshopper should be required to take ethics classes.

The Nordstrom/Beckons Trademark Dispute: Beckons is a small firm based in Colorado which developed organic lifestyle clothing. Through what was described as an error in the Patent and Trademark office, Nordstrom (the Seattle based retailer) obtained a registration for a trademark which Beckons previously used. When the giant Nordstrom tried to attack tiny Beckons based on its mark, a similar uproar erupted on the internet. Bloggers wrote open letters to Nordstrom and called for its boycott. Again, there was no way Nordstrom or its lawyers anticipated that what would have otherwise been a run of the mill trademark dispute would morph into a public relations war (the value of which probably far outstripped the value of the original dispute).

(Note: I don’t mean to suggest that the lawyers in the examples above should be sanctioned or that they necessarily brought improper claims. Merely that they asserted what were viewed as overly aggressive claims and in response, the internet mobilized.)

Who raises the red flag? Just about anyone can raise a red flag about a court decision or position taken by a litigant. However, some bloggers tend to flag these claims frequently. Lawyers probably live in relative fear of one of their lawsuits being mentioned by any of these bloggers:

Professor Eugene Volokh: who founded and blogs at the influential and popular group blog Volokh Conspiracy often flags decisions which “get it wrong” on First Amendment grounds. More than one school administrator or local government official has surely cringed upon seeing his/her decision highlighted on the Volokh Conspiracy blog.

Walter Olson: who blogs at Overlawyered is another blogger who frequently flags unreasonable positions taken by lawyers. While he monitors litigation excess generally, absurd tort lawsuits are his specialty, and many a plaintiff’s lawyer has graced the pages of his blog in shame.

Marc J. Randazza: who blogs at the Legal Satyricon flags decisions which are problematic from a First Amendment or an intellectual property perspective. Mr. Randazza is often scathing (but accurate) in his criticism. He also covers a wide range of topics but the government of Florida is one of his favorite subjects.

Bloggers from all stripes flag problematic decisions. In one famous example, a blogger pointed out an error in a United States Supreme Court decision. (ABA Journal: “Blogger Points Out Substantial Error in Supreme Court Decision.”) More recently, law blogger and media lawyer Bob Ambrogi raised the alarm about a recent 1st Circuit libel decision. (Media Law: “Think You Know Libel Law? Think Again.”) I would venture to guess there is no way the Supreme Court Justices who decided Kennedy v. Louisiana were not made aware of the mistake pointed out by blogger Dwight Sullivan. Similarly, I would guess that there is no way the three 1st Circuit judges who participated in the decision in Noonan v. Staples, Inc. have not read or been made aware of Mr. Ambrogi’s criticism of that decision.

In addition to bloggers, public interest groups also participate in the dynamic. Washington DC-based Public Citizen, San Francisco-based Electronic Frontier Foundation, and Cambridge-based Citizen Media Law Project have been quite active in participating in cases where a stronger adversary tries to bully a weaker opponent. Many famous examples exist. EFF fought and won one of the first internet anonymity cases: Doe v. 2TheMart.com Inc. Public Citizen has taken on Wal-mart when the giant retailer tried to silence a criticism site: Smith v. Wal-Mart Stores, Inc.

What is the Effect of This Dynamic?

One obvious effect of this dynamic is to level the playing field in certain types of litigation. There are no concrete statistics, but lawsuits in certain areas seem to be more likely to receive significant attention in the blogosphere – lawsuits involving: (1) free speech on the internet; (2) corporate criticism; (3) the assertion of trademark rights; (4) copyrights and copy control mechanisms; and (5) abusive or overbroad subpoenas (particularly those related to number (2)). (Bloggers are not necessarily rising en masse to the defense of indigent defendants or death row inmates.) The obvious effect of blogospheric participation is in these types of cases it is less likely that a person or company with greater resources is able to simply bully an opponent.

Second, the blogosphere’s participation has created (or more likely amplified) the “Streisand Effect”. The Streisand Effect refers to a situation where someone seeking to silence a critic draws attention to the critic by filing a lawsuit or taking legal action. Many lawyers and public relations professionals have rued sending out a strongly worded demand letter – only to find out that the letter riled up the blogosphere and an army of commentators have joined the fray on behalf of a seemingly outgunned opponent.

Finally, the blogosphere’s participation can result in the correction of bad decisions. The Kentucky Domain Name decision is one good example of a recent decision which sparked a firestorm of controversy, and which was ultimately reversed on appeal. (EFF: “Kentucky Court of Appeals Overturns Domain Name Seizure Order” (as the EFF page notes, a further appealing is pending).)

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Increased scrutiny of legal decisions and lawsuits by blogs and internet commentators will have undoubtedly have an overall beneficial effect. Judges and lawyers realize there are one more set of eyes scrutinizing their decisions.

For a lawyer, however, the dynamic is slightly different. Lawyers these days live in fear that one of their lawsuits will be highlighted on the pages of sites such as Overlawyered, the Legal Satyricon, or the Volokh Conspiracy. I know I sometimes do.

This entry was posted on Thursday, March 19th, 2009 at 11:39 am by Shalini and is filed under Guest Bloggers. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.