March 3, 2016, Trial News
First Amendment protects Michigan attorney’s blog post
The Michigan Attorney Grievance Commission has ruled that an attorney’s blog post is constitutionally protected speech, dismissing a grievance filed against the attorney by a doctor who performed a defense medical exam (DME) on his client.
The Michigan Attorney Grievance Commission has ruled that an attorney’s blog post is constitutionally protected speech, dismissing a grievance filed against the attorney by a doctor who performed a defense medical exam (DME) on his client. In a post on his firm’s blog, Michigan attorney Steven Gursten described the trial testimony of Dr. Rosalind Griffin that directly contradicted statements Gursten’s client gave during the exam, which had been videotaped. Griffin, who is a nonlawyer member of the state’s attorney discipline board, filed a request for investigation with the commission demanding that the post be removed and complaining that it was popping up in Internet searches for her name. On Feb. 4, the commission dismissed the complaint and announced that it was taking no further action in the matter.
The blog post at issue stemmed from an exam Griffin, a psychiatrist, conducted on one of Gursten’s clients, who had been injured in a truck crash. According to Gursten’s blog post, which discussed excerpts of the trial transcript compared with the video, Griffin’s testimony contradicted what the plaintiff told her about how he was feeling after the crash and whether his condition was improving. The blog post also raised concerns about Griffin’s methods and identified misrepresentations of the plaintiff’s answers to her questions that Griffin then interpreted to minimize the plaintiff’s injuries. When challenged on cross-examination, Griffin wavered on some of her earlier statements.
The grievance and the commission’s ruling highlight a significant question facing attorneys: How are attorneys—and ethics guidelines—adapting to blog posts and other social media? According to Gursten, the Michigan ruling is likely the first of its kind. “There are so many new vehicles for lawyers to connect, and ethics rules haven’t really caught up yet. There is a vacuum of guidance. Most grievance commissions are not really progressive and are not sure how to deal with these new platforms, so they have been conservative in their approach and come down on lawyers. I know of two other cases in Michigan with First Amendment defenses that failed. But lawyers have the same First Amendment protections as everyone else, so long as they clearly don’t violate ethical guidelines,” Gursten said.
Several state bar associations—including California, New York, and Pennsylvania—have issued ethics opinions and guidelines for social media use in the last few years. Many states also have altered their professional conduct rules to include provisions that require attorneys to be competent with and stay current with the technologies they use. And the comment to the ABA’s Model Rule of Professional Conduct 1.1 on competence states that lawyers should keep up with changes to and consider the risks and benefits of technology relevant to their law practices.
But the grievance also has drawn attention to whether plaintiffs should have the right to record defense medical exams. DMEs are commonplace in personal injury cases, and plaintiff attorneys consider them inherently unfair—the insurers or defendants pay the doctors, giving them an incentive to find in their favor. But many states, including Michigan, do not require or may not allow plaintiffs to record these exams or have their attorneys present. Instead, most attorneys must file a motion to record the DME and are met with varying levels of success. Some states, however, do allow DMEs to be recorded. In 2000, the Supreme Court of Florida ruled in U.S. Security Insurance. Co. v. Cimino (754 So. 2d 697 (Fla. 2000)) that a plaintiff was entitled to have an attorney or videographer present at a DME unless there was a valid reason to deny that right. A 2007 case in the Supreme Court of Oklahoma held that a party required to undergo a DME may record the exam. (Boswell v. Schultz, 175 P.3d 390 (Okla. 2007).) Arizona’s rules of civil procedure allow for audio recording of exams and videotaping if good cause is shown, and California permits audio recording or transcribing of exams.
Gursten said he was willing to risk his law license to fight Griffin’s grievance because he wanted to increase awareness about this issue. “In most states, the public just doesn’t know and judges don’t know about the role that DMEs play—there is a perverse incentive to find nothing wrong with people. Plaintiffs in most states are not allowed basic protections like recording the exam,” Gursten said. “If the exam is not recorded, it becomes the client’s and the attorney’s word against the doctor’s, and it’s really hard to prove. Hopefully, we can all learn from this, and it will lead to more protections for clients and the integrity of the process.”