Thursday, November 14, 2019
Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law—exploring ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.
After a hiatus, the Rhaw Bar is back to explore lawyer digital public commentary and raise some initial questions about lawyers engaging in digital rhetoric.
In Formal Ethics Opinion No. 480, issued in the Spring of 2018, the American Bar Association Standing Committee on Ethics and Professional Responsibility considered for the first time how a blogging lawyer must treat the confidentiality of client information. In deciding that the confidentiality rules applied to internet blogging, the Committee identified a category of lawyer speech it called “communicat[ion] about legal topics in public commentary.” The Committee recognized that while lawyers have historically “comment[ed] on legal topics in various formats” through “educational programs” and “articles and chapters in traditional print media such as magazines, treatises, law firm white papers, and law reviews,” the “newest format [for comments] is online publications such as blogs, listserves [sic], online articles, website posting, and brief online statements such as microblogs (such as Twitter®).” The Committee said that “[o]nline public commentary provides a way to share knowledge, opinions, experiences, and news.”
Although the point of this opinion was not necessarily to identify a new cateogry of legal writing but instead to warn lawyers that their obligations of confidentiality extend to their non-client-centered public speech, the opinion has the secondary effect of raising two questions. First, is a lawyer's digital public commentary a unique genre of legal writing? And, if it is, what are the rhetorical possibilities for and problems of this form?
I'm going to make the case that writing public commentary--whether digital or not--is a unique genre of legal writing. First, writing public commentary to influence thought and discourse on legal topics is decidedly less client-centered than other, more traditional forms of legal writing. Writing public commentary is more connected to the lawyer's role as a "public citizen with a special responsibility for justice" than it is to the lawyer's role as a representative of clients. Both of these roles are identified (along with others) in the Preamble to the Model Rules of Professional Conduct (most if not all states have adopted the Preamble's language).
Second, the idea of the lawyer speaking publicly is implicit in what the Preamble says about the lawyer-as-citizen role. The Preamble directs that “a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law[,] and work to strengthen legal education.” The Preamble further offers that a lawyer should “further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.” Both of these activities--cultivating knowledge and furthering public understanding--require communication with the public, not exclusively with courts, clients, or opposing parties in private and semi-private transactions. And if the public is now digital, it makes sense for the lawyer to communicate with that audience digitally.
So, I think the Committee was right to expressly identify "public commentary" as something different from the other forms of writing lawyers do. And although lawyers making public commentary is an old phenomenon, the Committee rightly recognized that the "digital" is new.
The digital information and arguments lawyers present to the public about legal matters of collective concern are a form of "digital rhetoric," rhetoric that is electronic or computerized. While digital rhetoric has characteristics in common with other forms of rhetoric, it also has some unique features. Two of those features are circulation and fragmentation.
Circulation refers to the way a message moves from audience to audience across space and time. The rapid velocity at which messages circulate is perhaps the defining characteristic of the digital environment. In the past, messages had to be shared face-to-face or through print documents physically sent from one person to another. (Think of the idea of the "circulation" of a newspaper, referring to the measurement of how many readers a newspaper had.) Message circulation increased and accelerated with television and radio. But, even then, gatekeepers controlled the amount, speed, and movement of information via those media. With the internet, however, both the speed and range of message circulation has increased again. That is, a message can find itself instantly anywhere in the world, be subject to minimal gatekeeping (at least in free societies), be seen by limitless audiences, and be responded to by those audiences instantaneously.
Fragmentation means that a digital message can be broken into smaller pieces and those fragments can be reused, repurposed, or reformed in other digital messages. That is, when composing messages in and for internet spaces, the resources of invention come not only from one's own internal thoughts but also from mixing and remixing what can be found in other messages already in circulation. In the digital world, fragmentation is more common and more frequent than with messages that appear in print, for example. This means that online speakers and audiences have more resources for thought and argument than in other contexts but at the same time may face more difficulty in making sense of messages that have been mashed and mixed in ways not originally anticipated.
So, if lawyers’ online public commentary is both a unique genre of legal writing and a digital rhetoric, what questions might we ask about the challenges and opportunities digital legal commentary presents?
First, we might ask questions about the resources available to lawyers in the digital space. What methods and sources, unique to digital rhetoric, are available to lawyers who want to be commentators in digital spaces? Are/should any of those methods be ethically off limits to lawyers? Conversely, how might we adapt traditional rhetorical resources and approaches to apply to digital public commentary about the law? For example, how do our traditional ideas about effective organization, style, and delivery apply in the digital space?
Second, we might ask questions about the quality of lawyers’ messages and the risks posed by message fragmentation and rapid circulation. What concerns for accuracy and influence of the lawyer's message do rapid circulation and fragmentation present for the lawyer? Is misuse and misinterpretation of message fragments inevitable? If a lawyer's commentary on a legal issue is broken apart and is re-used in ways the lawyer did not foresee, what are the ethical and rhetorical implications for the lawyer? How do lawyers influence the limitless audiences that may encounter all or fragments of the lawyer's message?
Finally, we might ask questions about the a lawyers' duties in the context of digital rhetoric. If lawyers are supposed to be public-citizens educating the public on legal issues, do lawyers have an obligation, not just an opportunity, to use digital rhetoric for this purpose? Must lawyers be rhetorically "competent" in digital public commentary, and, if so, what does fulfilling that duty look like?
These questions demonstrate that the digital space presents new challenges and opportunities for lawyers as well as new ways of thinking about what what forms of persuasion are effective and appropriate for legal commentary in a digital world. These questions are worth thinking (and writing) about as digital communication spaces become even more prevalent and lawyers participate in them more. Your thoughts are welcome in the comments below.
Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at firstname.lastname@example.org.