Lee has concerns about the potential for bloggers to impact the outcome of a case. She even suggests that advocates may go so far as to "game" a case, by writing publicly about it in a blog to spur the Court to grant cert or rule a particular way. Because Lee believes that bloggers could impact the outcome of a case, she argues that the legal profession should consider regulating ex parte blogging, despite the positive benefits — e.g., discovery of errors and stimulating public debate — that blogging brings to the table.
This comes from several sources, but see, “Do we need ethics rules on ex-parte blogging?” on Legal Blog Watch.
Lee’s note provides a service in alerting the profession to the potential impacts of blogging. But beyond that, I see no reason for regulation. Current ethics rules prohibit lawyers from trying to influence the judicial process so lawyers should not be blogging about ongoing cases for that reason. Moreover, because blogging is public, opponents have an opportunity to file comments in response. Blogging about a case, even one in which a lawyer is involved, is therefore, far different from conveying an opinion about it to the judge in closed chambers. As for lawyers who blog about matters with which they are not affiliated, restricting their ability to blog would give rise to serious First Amendment consequences.
Finally, if we prohibit judges from reading blogs about ongoing cases, why not bar them from reading newspaper articles or watching TV as well. Thus far, we trust judges to have the ability to filter out opinions from external sources, which is why the traditional bar on jurors’ ability to read the newspaper or watch television doesn’t apply to judges. Why treat blogs differently?
This is particularly interesting in light of a recent military law review article citing a comment on a CAAFLog posting as legal “authority.”