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Lawyers engaging in pretrial publicity on the Internet is a growing concern within the legal profession, as many fear that online rantings, blogs and press releases by attorneys are potentially tainting the jury pool. While some lawyers are concerned about adversarial law firms posting press releases that are unflattering to their clients, others object to Web sites that give biased, blow-by-blow accounts of pending litigation. Some are also angered by anonymous attorney blogs that criticize the merits of pending cases and bash the lawyers involved. “Courts are going to have to be especially vigilant in making sure the juries are not tainted by such tactics,” said Wayne Gross, a business litigator at Snell & Wilmer’s Costa Mesa, Calif., office. “The Internet increasingly provides lawyers with an inexpensive platform to widely disseminate prejudicial information,” Gross added. “There are no gatekeepers,” he said. “Anyone can put up anything on the Internet.” Dan Ross, a commercial litigator at New York’s Stroock & Stroock & Lavan, agreed. “In the old days you could have 25 cases and you could say all the bad things you wanted, but you couldn’t find anyone to print it,” Ross said. “Now, you can create your own press.” A look at the rules According to George Kuhlman, ethics counsel for the American Bar Association, the ABA is not contemplating any changes to its Model Rules of Professional Conduct specifically to address extrajudicial comments made by lawyers on the Internet. Kuhlman noted that the current rule dictates what a lawyer can and can’t say about a case outside the courtroom, and that it applies regardless of the medium of dissemination. The rule, he said, looks at statements that “will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” Thus, Kuhlman said, the rule covers comments made in a newspaper, on television or radio and on the Internet. Many state bar groups echo the ABA. Neither the California nor Texas bar association has rules specifically addressing lawyers making prejudicial comments on the Internet. Both state bar groups, however, have ethics and responsibility rules that could be applied to attorneys who knowingly put information on the Internet that could taint a jury pool. Recently, Duke University sought to have several lawyers sanctioned for, among other things, maintaining a Web site about a lawsuit filed on behalf of 38 students and their parents suing over the infamous lacrosse sex scandal. [NLJ, April 14]. The lawsuit alleges that Duke failed to protect the students from a flawed prosecution. On April 15, however, a judge denied a motion to sanction the lawyers and refused to take down the Web site, despite Duke’s concerns that it was “an orchestrated campaign to taint the jury pool.” Carrington v. Duke, No. 1:08-cv-119 (M.D.N.C.). Juror dismissed In California, a lawyer’s blog covering a criminal securities fraud trial became a source of controversy last year when a juror was dismissed from the panel after admitting that he had read the blog. States of America v. Gardner, No. 04cr2605 (S.D. Calif.). The attorney who is blogging about that trial, which involves the collapse of San Diego-based Peregrine Systems, is San Diego criminal defense lawyer Robert Grimes of Grimes & Warwick. He is posting up-to-date, detailed reports on the trial at his firm’s Web site at www.grimesandwarwick.com/peregrine. The San Diego Tribune has reported that Grimes was hired to write the blog by a law firm involved in some of the civil litigation arising from Peregrine’s meltdown, but that Grimes has declined to identify the firm. Grimes admits he is writing the blog, but would not comment on whether a law firm hired him to do so. Meanwhile, in Texas, an in-house patent lawyer is in hot water for allegedly blogging anonymously about litigation involving his employer. Cisco Systems Inc. lawyer Richard Frenkel, who recently outed himself as the Patent Troll Tracker blogger, was sued for defamation in February and March for allegedly accusing two Texas attorneys of engaging in criminal conduct in a case against his employer. Ward v. Cisco and Frenkel No. 2007-2502 (Gregg Co., Texas, Dist. Ct.); Albritton v. Cisco and Frenkel, No. 2008-481-CCL2 (E.D. Texas). For patent attorney Raymond Niro of Chicago’s Niro Scavone Haller & Niro, it’s the anonymous attorney bloggers who get under his skin, particularly when they write derogatory remarks about his clients. He alleges some of his clients were the subject of remarks posted on Frankel’s anonymous blog. “If lawyers want to say something about their cases on the Internet � a practice that I think would be foolish � fine. But put your name on it,” said Niro. Frenkel was not available for comment. Cisco, which was also sued for defamation regarding the contents of Frenkel’s blog, has defended Frenkel and has allowed him to continue running the blog � just not anonymously.

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