The internet has changed everything. Every fool with no money has a blog, every newspaper website caters to the lowest common denominator and every twit can Tweet for free. A percentage of these are former and current clients, both gruntled and dis.

Back in the old days, when you walked 20 miles to work, uphill, in blizzards, with no shoes, the only medium for clients to express their displeasure was filing a grievance with the state bar. Now, clients are able to air their grievances in a more public forum, with no restrictions that their complaints be made in good faith or sworn to.

And since you are what the internet says you are, how far can (or should) one go in response, asks Mike C:

What if a former client writes: “My lawyer was terrible.  He never returned my calls or e-mails.  I had a million-dollar case, and she blew it!”

Some prospective clients might read that blog entry, and thus never call the lawyer.  Current clients might get nervous.  Other lawyers might decline to refer a case to the bad lawyer.

Under the current Rules of Professional Conduct, it would certainly be unethical for the lawyer to write: “John Smith called me 5 times each day.  He asked the same questions over and over again.  After evaluating his case through discovery, we realized his case was marginal.  We told him to settle the case for $25,000 – nuisance value.  He refused.  The trial court dismissed the case on summary judgment.  Now he’s angry.  By the way, you can read the case filings here, here, and here to decide for yourself whether we blew a huge case.”

Does that Rule make sense?  A lawyer can lose business.  Online reputation matters – not for a lawyer’s ego – but for his business.  The law offers trademark protection.  A brand matters.  A lawyer is only as good as her name.  Shouldn’t a lawyer be able to breach some aspects of the attorney-client privilege in order to protect her name?

First off, this really is nothing new, at least for those of us in the high-volume criminal defense business. I’ve had clients tell me they didn’t want me to represent them and wanted me to, in the same week, based on what their then-cellmates told them about me. You are as good as your current client’s former cellmate says you are.

Second, the differences between revealing confidences to defend against a disciplinary proceeding and responding to a blog post or newspaper comment are quite obvious. The grievance proceeding requires you to defend against the accusations, for failing to do so affects your livelihood.

But what of Mike’s point of the reputation of the lawyer in this age where more and more people are relying on the internet to secure representation? I have the wherewithal to explore any concerns I might have about a prospective lawyer with real people who know that lawyer and that lawyer’s work, but might a potential client? Why shouldn’t a lawyer have the ability to respond, albeit in a limited fashion to that Festivus tradition?

Scott’s take is similarly multi-faceted. He, too, recognizes the need to permit the attorney to have the ability to respond in some fashion, but cautions us that it is constrained in many ways by our continuing obligation to our clients:

[In response to Mike's hypothetical] I’m not entirely clear that’s accurate.  Waiver of privilege is an all or nothing proposition.  Once a client discloses confidential communications to others, it constitutes a waiver.  It’s the client’s to waive, and there’s nothing to prevent her from doing so.  It may be stupid and foolhardy, and the client may not realize the significance of disclosure and waiver, but it’s her right to let the world know what happened within the sanctity of the attorney/client relationship.  Once waived, however, the privilege is extinguished.  Like pregnancy, it’s not just a little waived.  It’s waived.  End of privilege.

Thus, while there may be no ethical or legal impediment to the use of privileged communications to fend off an attack, and while waiver means waiver, we nonetheless have a duty to disclose no more than is necessary to respond, and a duty to do no harm to the client in the process.  While the best defense may be a good offense under other circumstances, we’re constrained to use the least harmful defense possible.

Clearly, the limits placed on our ability to lash back at those who might lash out at us puts lawyers at something of a disadvantage in a street fight, and certainly an attack on the internet can bear all the indicia of a street fight.

I don’t know much about the grievance process and the extent of confidential communications and privileged information that one can disclose in response to a grievance, but there is another area of the law in which confidences are routinely disclosed and that’s the post-conviction setting.

In my fleeting dalliance with the post-conviction world, I noticed many odd behaviors by defense attorneys and a marked change in attitude toward the client. For some reason even the most experienced criminal defense attorneys never seemed to grasp the simple fact that the claim of ineffective assistance of counsel was not – and never will be – a personal attack. It is yet another of those Constitutional rights afforded the defendant that we seek to so zealously uphold when we are representing them on the front end.

In the post-conviction context, there is plenty of case law that makes clear that the filing of a habeas corpus petition does not constitute a “full waiver” of attorney-client privilege and regardless of any other duty that the lawyer may have to his former client, the waiver is a limited waiver:

Claims of ineffective assistance of counsel are routinely raised in felony cases, particularly when a sentence of death has been imposed. If the federal courts were to require habeas petitioners to give up the privilege categorically and for all purposes, attorneys representing criminal defendants in state court would have to worry constantly about whether their casefiles and client conversations would someday fall into the hands of the prosecution. In addition, they would have to consider the very real possibility that they might be called to testify against their clients, not merely to defend their own professional conduct, but to help secure a conviction on retrial. A broad waiver rule would no doubt inhibit the kind of frank attorney-client communications and vigorous investigation of all possible defenses that the attorney-client and work product privileges are designed to promote.

Were such a broad waiver necessary to satisfy federal interests, the state’s interest in protecting lawyer-client confidences might have to yield. But we can conceive of no federal interest in enlarging the scope of the waiver beyond what is needed to litigate the claim of ineffective assistance of counsel in federal court. A waiver that limits the use of privileged communications to adjudicating the ineffective assistance of counsel claim fully serves federal interests. See Laughner, 373 F.2d at 327. At the same time, a narrow waiver rule — one limited to the rationale undergirding it — will best preserve the state’s vital interest in safeguarding the attorney-client privilege in criminal cases, thereby ensuring that the state’s criminal lawyers continue to represent their clients zealously.

A narrow waiver rule is also consistent with the interests of the habeas petitioner in obtaining a fair adjudication of his petition and securing a retrial untainted by constitutional errors.

Bittaker v. Woodford (9th Cir. 2003). And yet this simple, yet powerful rationale is completely wasted on scores of lawyers. Lawyers “defending” against claims of IAC seem to think:

  1. That they are a party to the habeas corpus proceeding;
  2. That counsel for the actual party, the Respondent, is their lawyer;
  3. That they must give the State dirt on the client;
  4. That they must turn over their file to the State;
  5. That they must not co-operate with counsel for the former client;
  6. The file belongs to the lawyer, not the client.

This is not a test. All 6 are wrong. Utterly, completely wrong. It is very revealing when a lawyer maintains a poor file during his representation of the client, but even more so when that same lawyer takes affirmative steps to hinder the prosecution of a habeas corpus petition. There is nothing more aggravating, disappointing and disgusting than when trial counsel takes the stand in a habeas hearing and suddenly cannot remember details he’d previously disclosed to the habeas attorney or somehow can miraculously remember in excruciating detail conversations that he’d minutes ago, off the record, confessed to habeas counsel of having no memory of.

One of the worst things you can do as a criminal defense attorney is make an error that may have contributed to the conviction of a client. Compounding that by standing on the sidelines as that conviction is affirmed will not help you sleep better at night.

There are some very simple rules for ethical behavior in the post-conviction context [read this Champion article (HTML version) for some in-depth counseling]. Remember that the right to effective assistance of counsel is a Constitutionally afford right to the client who is spending his days and nights in jail. Also remember that it is not for you to decide whether you provided effective assistance of counsel. Don’t reveal more than is required by the scope of the IAC allegations. Don’t offer up your client on a platter.

Worried about your reputation? The lawyer who doesn’t get in the way of his client in the post-conviction arena almost always has a better reputation than the lawyer who does, at least in the legal community, if not among the clientele. That’s because it conveys one very important fact: that you are going to put the client’s interests ahead of your own.

Heed the advice we give our clients about cops: “they’re not your friend”. The respondent? Not your client’s friend.

That bus? It’s not for you to throw your client under.

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