04 March 2009

Self Censorship

While it may sometimes seem like it, I do not actually simply pour everything I think or have to say of general interest into this blog. There is actually considerable self censorship that goes into producing this little bit of the blogosphere.

As the sidebar notes, I am a Denver based lawyer. This means that I have substantial ethical obligations to keep information about my clients confidential (Colorado Rule of Professional Conduct 1.6), even if its is not legally privileged from subpoenas and discovery, and even if this information may be obtainable from another source. As a lawyer, I am also forbidden from improperly influencing or disrupting the courts (Colorado Rule of Professional Conduct 3.5), I am limited in the extrajudicial statements I can make about litigation (Colorado Rule of Professional Conduct 3.6), I am prohibited from defaming judicial officials (Colorado Rule of Professional Conduct 8.2), and I am subject to the lawyer's equivalent of the "officer and a gentleman" rule in military justice (Colorado Rule of Professional Conduct 8.4). I am permitted to engage in law reform activities that may impact my clients, but I am obligated to disclose that my advocacy benefits a client (although I need not disclose which client) if it does so (Colorado Rule of Professional Conduct 6.4).

In addition to my obligations of a lawyer, I avoid mentioning my children or spouse by name without a very good reason for doing so, in order to avoid creating a paper trail the could lead to identity theft and to avoid embarrassment. And, I also make it my practice not to disclose inside political information I am privy to, before it is ripe to do so or available from third party sources.

I also feel an obligation towards my readers to make posts that are not hedged in unacknowledged material ways by ethical concerns.

On the other hand, there are some matters which others self censor, such as the names of bad actors in the political and legal system, and perpetrators of business misconduct, which I make a point of including when I have a factual basis to support my statements. This utilizes the wonders of Internet search engines to leverage my contributions to creating accountability in our society, even though it means that my exposure to litigation may be higher (a risk that is particularly high for a blogger who uses his real name as I do).

All of this means that this blog is self censored quite a bit.

For example, it is my policy not to comment non-factually by name on particular sitting or nominated trial judges whom I have any reasonable probability of practicing before (although the gloves come off when a judge leaves office in disreputable circumstances, and factual background on efforts to remove these judges which are public knowledge are not off limits).

Another important category of issues that I do not post upon are disputed legal issues upon which I am now taking a position, or I am likely to in the immediate future take a position, in the course of representing a client. For example, if I were writing a brief to the Colorado Court of Appeals on the legal doctrine collateral estoppel, I wouldn't blog on a case I saw on that issue at How Appealing. These issues shift from month to month, and sometimes I will reference a non-controversial part of an issue (e.g. federal courts are courts of limited jurisdiction) in a larger post, even if I am currently litigating a controversial part of that issue (e.g. how the amount in controversy is calculated for federal jurisdiction purposes in a class action lawsuit).

So, if some issue drops off the blog for a while, and others sudden start appearing again, this may have something to do with my changing practice, or may simply be a matter of shifting interest and news coverage. Like the C.I.A., I will not confirm or deny my reasons for not blogging on particular topic in individual cases.

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