Notes on a Diversity Workshop

 At the ABI Winter Leadership Conference, I attended a diversity and inclusion workshop put on by Elton Ndoma-Ogar of Alix Partners and Peter S. Salib of Perkins Coie, LLP. I wasn't sure that writing about an interactive workshop would be useful, but a friend encouraged me to try. At the end of the article, I have included a link to their materials, which you can access if you are an ABI member. If you are not an ABI member, contact me and I can send them to you.

NCBJ 2022: Awards Edition

Every year numerous awards are presented at the National Conference of Bankruptcy Judges. These awards are an opportunity to recognize people who have contributed to the insolvency profession.

A Cautionary Tale for Zoom Depositions

 By now, we have grown used to Zoom hearings, Zoom mediations and Zoom depositions. However, a case I heard discussed at the ABI Winter Leadership Conference points out that as ubiquitous as these technologically assisted interactions are, they can pose both challenges and perils to the unprepared. 

NCBJ 2021: Awards Edition

 One of the celebratory aspects of the National Conference of Bankruptcy Judges is the recognition of judges, attorneys and others receiving awards from various groups. I went to as many programs I could. Congratulations to the following honorees!

The Bankruptcy Inn Alliance of the American Inns of Court recognized two judges, making up for the lost year of Covid. There are currently fourteen Bankruptcy Alliance Inns, including a new one in North Carolina. I am a member of the Larry E. Kelly Inn of Court in Austin-San Antonio, Texas.

Judge Judy Fitzgerald (retired) from Pittsburgh was the 2020 award recipient. She has her own Inn of Court named for her. I got to know Judge Fitzgerald from the Commercial Law League of America where she was very active.

Judge Harlan "Cooter" Hale from Dallas was the 2021 award recipient. Judge Hale will be retiring next year among what he described to me as a generational shift in the bankruptcy judiciary. Judge Hale is a member of the John C. Ford Inn of Court in Dallas. He said that when he took the bench, one of his duty stations was in Wichita Falls, Texas. When he traveled there, Judge Ford's robes were still hanging there and he wore them in honor of his predecessor.

Judge Laura Taylor Swain (S.D. N.Y.) received the Lawrence P. King Award for Excellence in Bankruptcy. Judge Swain is one of a select group of bankruptcy judges to be appointed to an Article III bench. She was appointed as a Bankruptcy Judge in the Southern District of New York in 1996 despite not having practiced bankruptcy. In 2000, President Clinton appointed her to the District Court bench. In 2017, she was appointed by Chief Justice Roberts to preside over the PROMESA debt restructuring cases in Puerto Rico. She will become chief judge of the Southern District of New York later this year. 

Judge Randolph Haines (retired) received the William Norton Judicial Excellence Award. While serving on the bankruptcy bench in Arizona, he wrote the opinion in Bliemeister v. Industrial Commission (In re Bliemeister), 251 B.R. 383 (Bankr. D. Ariz. 2000) which held that sovereign immunity did not preclude the Bankruptcy Court from determining that a debt owing to a state agency had been discharged. The Supreme Court relied upon his analysis in Tennessee Student Assistance Corp. v. Hood, 124 S.Ct. 1905 (2004).

The American Bankruptcy Institute presented its Annual Service Award to the ABI staff in recognition for their heroic service during the year of Covid.

The ABI also recognized John Penn of Perkins Coie and Bob Keach of Bernstein Shur. Both men are former Presidents of the ABI. Mr. Penn was praised for his Zelig-like presence at many important times during the life of the ABI while Mr. Keach was recognized as the co-chair of the ABI’s Commission to Study the Reform of Chapter 11 and his work on legislative reform.

 

NCBJ 2021: Legislative Wish Lists and Realities

This is a combination of two programs. One of the NCBJ plenary sessions offered a Shark Tank like program where three lawyers pitched their proposals to reform the Bankruptcy Code. Meanwhile, at the ABI luncheon, Bill Brandt and Robert Keach offered their prognostications as to what might actually change in the Code. Since both programs involved legislation, I have chosen to combine them here. As you read through this article, you should note that the first part contains the idealism of would-be reformers while the second part contains the realpolitik. 

Shark Tank

Student Loans

In the first program, John Rao of the National Consumer Law Center offered his proposal to amend 11 U.S.C. Sec. 523(a)(8) to rollback dischargeability of student loans to the law as it existed in in 1998 when student loans could be discharged after seven years or on a showing of undue hardship.  He said that the seven-year period deals with the concern that people can come straight out of school and file bankruptcy. He said it's not a complete solution. He said we still need to deal with cost of higher education. 

To make the case for change, he gave the illustration of Karen in Arkansas. She borrowed $10,000 thirty years ago. She never used her degree. Over thirty years, she paid $20,000 but still owed $106,000. Mr. Rao said that there is something fundamentally broken with a system if that is how we treat our debtors. Now the federal student loan creditors can garnish her Social Security and tax refunds and even the Earned Income Tax Credit. There is no statute of limitations on federal student loans so her debts will only disappear when she dies. 

Why did Congress change the law?  (Congress changed the law in 2005 to add some private student loans to the list of non-dischargeable debts and eliminate the ability to discharge student loans after seven years). He pointed out that there was not a single Congressional hearing or GAO report on abuse. He characterized the change in law as a Congressional gimmick to balance the budget. 

Mr. Rao was asked if his proposal would protect the public fisc. There are $1.7 trillion in federal student loans. Why not require payment of disposable income over period?

Mr. Rao responded that most debts are performing. Only about 10% in default. There is no evidence that denying discharge increases revenues to government. Instead, the federal government can capitalize the interest and seek returns that would make a predatory lender blush. The problem with requiring debtors to complete a chapter 13 is that about 50% of Chapter 13 debtors never get a discharge.

Mr. Rao was asked about his proposal to leave undue hardship in in his proposal. He was asked whether it be better to have objective criteria for undue hardship. Mr. Rao said that objective criteria would help but we already have a workable standard for undue hardship in connection with reaffirmation agreements and it would make sense to use that standard. However, he pointed out that the debtors who need relief the most can't afford to litigate. 

He was asked whether his proposal would roil the markets. Wouldn't lenders increase the price to address the risk? He pointed out that the pricing only affects private lenders. When private loans were made non-dischargeable in 2005 there was either no decrease in rates or an actual increase based on different studies.

President Biden has proposed cancelling some student loan debt. Doing this would be a stimulus to economy according to Moody's as more people would be able to buy homes and have children. However, requiring bankruptcy to get that cancellation would avoid the moral hazard of general cancellation. 

KERPs

 

Metta Kurth pitched a proposal to close loopholes to BACPA's limitations on "pay to stay." She called her proposal "stop the heist." In 2005, BAPCPA limited Key Employee Retention Programs ("KERPs") by requiring that a company demonstrate three things: that the person receiving the KERP has received a better offer, that their services are essential and that the amount of the KERP is either not more than 10 times the mean amount paid to non-management employees for similar purposes or, if no similar amounts were paid out in the prior year, it did not exceed 25% of any similar payment made to an insider during the prior year. 11 U.S.C. Sec. 503(c).     

Some companies shifted away from KERPs and went to "keeps," incentive payments to be earned for meeting certain benchmarks. Ms. Kurth said that "keeps" had a greater sense of integrity. However, other companies made an end run around the KERP rules by simply making these payments pre-petition. She gave the example of JC Penney which paid out $7.5 million to four executive five days before the petition. 

Ms. Kurth proposed to amend 11 U.S.C. Sec. 548 in three ways:

(a) Existing Sec. 548(a)(1)(B)(ii)(IV) states that insider compensation given for less than reasonably equivalent value and outside of the ordinary course of business can be recovered as a fraudulent transfer. She would extend this to apply to all insider compensation given during the 90 days before bankruptcy.

(b)  She would also add a provision that insider compensation would be presumed to be for less than reasonably equivalent value if it was greater than the normal pre-bankruptcy compensation and did not meet the requirement for a KERP; and

(c)  Make non-dissenting directors who approve compensation in violation of this provision liable similar to state laws applicable to illegal dividends. 

She was asked if companies would just give out insider bonuses 91 days before bankruptcy if her proposal was adopted. She answered that the petition date is often fluid and that 90 days will catch most abuse. 

She said that her proposal would motivate companies to use a "keep" or stay within guardrails for KERPs during the runup to the petition.

She acknowledged that her proposal would not fix the imbalance in executive compensation. 20 years ago, executives earned 70 times the wage of their typical worker while today that ratio is now 200 times.

She said that she was not trying to fix entire system, just the perception of abuse.

(Ed.: While I admire Ms. Kurth's enthusiasm, her proposal would continue the trend of making the Bankruptcy Code resemble the Tax Code in its complexity. The problem with ever more specific prohibitions is that ever more clever lawyers will find ways around them. To be very clear, she had identified a very real and very serious problem. My quibble is with the specifics of her proposal rather than the need for it)

The Means Test

Eric Brunstad proposing the means test as the gateway for determining substantial abuse. He proposed going back to the standard existing before BAPCPA when Bankruptcy Judges had discretion to find substantial abuse based on the circumstances of the case rather than a statutory presumption. 

He said that the means test was a solution in search of a problem that never existed and a bad solution at that.

He said that judges know abuse when they see it and have ample tools to address it when it actually arises.

He asked the rhetorical question of where did the means test come from? He said it came from the history of credit card underwriting. At one time, credit card underwriting was done on an individual basis. Then it went to a portfolio underwriting system. The model predicted 4% default rate. As time went on, credit cards became less profitable. He said that the credit card companies wanted to squeeze a couple more bucks out of the system by making bankruptcy more difficult and expensive to pursue. (Ed. Prof. Ronald Mann described this as the "sweatbox" in an influential paper). 

He said that the means test was a very inefficient solution. If you are $1 above the test, you are deemed to be a substantial abuse. 

Prof. Brunstad said that the empirical data said abuse was not out there. He also said that a one size fits all test was not useful. He quoted Tolstoy who said, "All happy families are alike; each unhappy family is unhappy in its own way.” He said that by analogy, every abusive debtor is abusive in its own way. 

He stressed that there was not a problem with too many people filing bankruptcy. According to Sen. Elizabeth Warren, 43 million people were in financial distress after the Great Recession, but only 1.5 million filed bankruptcy.  He said that people do not file for bankruptcy willy-nilly

He repeated the proverb that you can't get blood out of stone and then described the means test as a very expensive blood test for the stone.

He said that this kind of discretionary thing (i.e., ferreting out abuse) is what bankruptcy judges are paid to do.

He also said that there is a huge externality problem. He asked who gets the benefit and who bears the cost? The credit card companies reap the benefit from debtors who continue to pay because they cannot afford to file bankruptcy. The cost is borne by higher fees paid by debtors. He said that if a debtor is required to file chapter 13, it is like a 25% tax. 

In the end, the audience voted to invest in all three proposals. Unfortunately, legislative reform depends on a dysfunctional Congress, not what bankruptcy judges and professionals would like to see. That offer a nice segue into the second legislative program I watched.

ABI's Program on Legislative Likelihoods

The three proposals contained in the Shark Tank program were each thought provoking. However, when the American Bankruptcy Institute put on a program on likely changes to legislation, it focused on different proposals altogether. Bill Brandt and Robert Keach are both ABI members who have been active in proposing legislation. Although ABI does not take positions on legislative as a group, its individual members have been active in lobbying Congress. I want to stress that the very opinionated and outspoken Mr. Brandt and Mr. Keach were speaking for themselves rather than for the ABI as an institution. 

SubChapter V

Mr. Brandt started the conversation off with discussion of SubChapter V. He said that when it was passed, the debt limit of $2.7 million was too low. Shortly after it was passed, they were able to increase the limit to $7.5 million but only on a temporary basis. Now he said that the goal would be to increase the limit to $20 million. However, at higher limits, SubChapter V would take on more of a hybrid nature. He said that U.S. Trustee fees would need to kick in at somewhere between $7.5 million to $10.0 million to keep the program funded. He also said that legislation would likely give courts the option to have a creditors' committee beginning at $12-$15 million.

He said that if the debt limit was increase to $20 million, it would cover 95% of Chapter 11 cases. He said that this would take the wind out of the venue issue, which he described as "our abortion issue."

This raises two very interesting questions. Was he assuming that mega SubChapter V cases would not be forum shopped? If the law allows forum shopping and litigants see an advantage to doing so, why would they stop? Also, it wouldn't address the problem of the large public companies seeking out favorable venues to the detriment of smaller creditors, employees, retirees and other constituencies. Also, as a Texan, I am very familiar with the emotions triggered by abortion. On the one hand are those with moral certainty about the importance of lives as yet unborn while on the other there is the moral certainty of those who want to control their own bodies. Abortion stirs the outrage of moral certainty in its combatants. Is bankruptcy venue really that divisive or was Mr. Brandt merely engaging in hyperbole?

 Mr. Keach acknowledged that he had lost the debate over having a facilitating trustee in SubChapter V and that it was good that he lost. He described the trustee as one of the reasons why the Small Business Reorganization Act has worked so well.

Mr. Brandt said that raising the SubV debt limit could make its way into a reconciliation bill because it would raise fees. He also explained that because the support of Sen. Grassley was critical that SubChapter V was intentionally made similar to Chapter 12.

Venue

Mr. Brandt had a very cynical view on venue reform. He said that with this President and Rep. Nadler chairing the House Judiciary Committee, venue would be a non-starter. He said that venue was a good way for Sen. Cornyn and Sen. Warren to raise a lot of money but that it would not be a factor for the balance of this decade.

Mr. Keach said that the option to allow affiliate filings was designed to placate New York bankruptcy lawyers but "no one in New York believes that."

(Ed.: Dissenting Opinion here. For the last three years, Sens. Cornyn and Warren have worked together on a venue bill. This year bills have been introduced into the Senate and House at an earlier stage with more co-sponsors than before. As cases like Purdue Pharma draw national outrage, bankruptcy venue will continue to build momentum. However, I must acknowledge that our scrappy, grass-roots crusade has very determined and well-organized opposition). 

Mr. Brandt said that there was a study that concluded that the bankruptcy industry had the same effect for the Delaware economy as having a minor league baseball team would have. He also said that having increased debt limits for SubChapter V would be a pretty good second choice for the venue reformers. 

Mr. Brandt noted that the fire for venue reform has weakened as the New York-Delaware duopoly has expanded to include Houston and Virginia. (Ed.: Dallas, TX, Corpus Christi, TX and Charlotte, N.C. have also been the recipients of recent attempts at forum shopping. Will forum shopping become so widespread as to draw a collective "meh" from the bar? As the blogger, I get to ask the questions, but I honestly don't have an answer).

He said that 10-15% of the Senate will always oppose venue reform making it an uphill battle. 

He also said that another needed reform would be to allow a single asset real estate debtor to be a SubV debtor if it was a landlord to a small business debtor.

Third Party Releases

Mr. Keach mentioned that when Jon Oliver did a program on third party releases, he had a researcher spend an hour with Mr. Keach. He said that Mr. Oliver gave the issue a very serious presentation. He then said that the issue was not going anywhere. He characterized it as a solution in search of a problem. He said that it was not the bankruptcy system that was broken but the tort system. He said that bankruptcy delivers money to victims faster and more efficiently than the tort system. He said that it is easy to forget that what we are about is compensating people. He said that if you want to punish people, prosecute them. "If you can't prosecute them, then shut up."

Mr. Brandt said that legislation barring third party releases even with an opt out were going nowhere. He said it was a chance for Democrats to say that they voted against Darth Vader. 

Student Loans

Mr. Brandt said that the Fresh Start Bill proposed by Sen. Dick Durbin is the closest bill that might actually achieve passage. It would reinstate dischargeability after ten years and is close to the ABI Commission's proposal. However, he said it was "probably not a this year thing." He added that bankruptcy reform always starts out with consumer provisions. He indicated that it would not be this Congress. Probably the next Congress or the one after that and it would be part of a bill with lots of ornaments on it.

He said that one problem with achieving bankruptcy reform is that there is not an association of past and future debtors but that student loan borrowers vote. Unfortunately, they cannot afford campaign contributions. 

Mr. Keach said that the purveyors of private student loans hired really good lobbyists in the past but that maybe the problem is becoming too significant to ignore.

Final Thought: I really appreciated the fact that Mr. Brandt and Mr. Keach didn't pull any punches. I may not have agreed with them, but they certainly gave their unvarnished opinions without resorting to polite euphemisms. 

NCBJ Awards Edition

One of the pleasures of attending the National Conference of Bankruptcy Judges is seeing good lawyers and judges being recognized for their contributions to the profession.   This year I attended three awards presentations.

The Commercial Law League of America presented the Lawrence P. King Award to Eric Brunstad, Jr.  Mr. Brunstad is a skilled advocate who has argued ten cases to the Supreme Court.  A consummate over-achiever, he has an LLM and a JSD from Yale Law School.  A JSM is the equivalent of a Ph.D. in Law.  He has taught at Yale Law School, NYU School of Law, Harvard Law School and the Georgetown University Law Center.  

In his acceptance speech, he acknowledged his debt to Lawrence King and many prior winners of the King Award, including Sen. Elizabeth Warren.   He said that he wanted to teach Secured Transactions at Yale and asked then-Prof. Warren what the best way to do that would be.   She said that the answer was to teach Secured Transactions at Harvard, which she helped him to do.   He said that it worked and that when he return to Yale, he got his own parking place and an assistant.

NCBJ Report: Awards Edition

One thing that conferences like NCBJ celebrate are the best in the profession.  This year I went to three awards presentation.   Prof. Nancy Rapoport of the University of New Las Vegas Law School received the Lawrence P. King Award for Excellence in Bankruptcy from the Commercial Law League of America.   Judge Mary Walrath (Bankr. D. Del.) received the Norton Judicial Excellence Award from the American Bankruptcy Institute and Thompson Reuters.   Finally Judge Homer Drake (Bankr. N.D.Ga.) received the Distinguished Service Award from the Bankruptcy Alliance of the American Inns of Court.    

New Media Equals New Ethical Issues

When I was in high school, social media consisted of my home telephone line.   I could use it to access the outside world until my parents told me to get off the phone because they were expecting an important call.   Today’s teens have many more opportunities for social interaction without actual physical presence than I did thanks to twenty-something developers of social media platforms who became instant billionaires when their product that didn’t actually generate any revenue got picked up by a big corporation afraid of missing out on the next big thing.   However, the funny thing is that as social media has proliferated, its user base has gotten wider and older.   Parents who signed up for Facebook to try to keep up with their teens activities (as if), discovered that other parents were there trying to monitor their kid’s activities.   When large numbers of persons in desirable demographics started using social media, it created an opportunity for advertisers, and as society embraced social media, lawyers eventually came around to it.   

 

For me, Facebook was my gateway to social media.   That led to blogging, list-serves and Twitter (which I am still trying to figure out).    For a child of the 70s like myself, social media has the same DIY sensibility that punk did during my high school years.   (I never formed a band and preferred the silliness of the Cars and the B-52s to the anger of the Sex Pistols and the Clash, but that’s a story for another day).  

The appeal of social media to lawyers is obvious.   You can spend six months writing a law review article that will come out a year later and be read by a few dozen people or you can spend several hours writing a blog post that will get several hundred views within the week.  Since most lawyers have some element of narcissism, social media appeals to that need.  More importantly, as the internet has proliferated, consumers are used to searching for information about products and services online so that an internet presence can be a way to reach potential clients for nothing more than the time it takes to write a blog. 

However, with great opportunity comes great danger.  (I think Spiderman said that).   While social media can allow the articulate attorney to convey his insights to more people than he could ever corner at a cocktail party, it can also lead to run-ins with the bar, defamation suits and unemployment.    The President has drawn heat for framing his foreign policy as “don’t do stupid stuff.”   However, when you boil it down, the cornerstone of legal ethics is don’t do stupid stuff (as interpreted through lots of rules).   This article will talk about how not to do stupid stuff with social media.  While ethics is generally framed in the negative, it can also point the way to our better natures, the professional that we always hoped that we could be.   While I will not be giving lessons on how to be the Atticus Finch of the digital age, I will pass on a few lessons I have learned from others on how to effectively use social media.

I.           Meet the New Media, Same as the Old Media?  Not Really.

Before getting into the dos and don’ts of social media, it is worth spending a few paragraphs on just what social media is.   Merriam Webster defines social media is:

forms of electronic communication (as Web sites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and other content (as videos).

            However, social media is an outgrowth of the new media.  Before talking about the ethical implications of social media, it is worthwhile to take a look at how media has changed.   The old media was one directional.  Media was produced by professionals and directed to consumers.  Old media consisted of print, television and radio.   It included such items as newspapers, newsletters, legal journals, law reviews and legal directories.  Interactive “old” media consisted of face to face contact in forums such as churches, Rotary Clubs, Inns of Court and so on.   

            Lawyers used “old” media for at least three overlapping purposes:   promotion, education and advocacy.  Promotion includes advertising, reputation development and networking.   Of these, advertising was highly regulated by the bar and networking could only be done effectively through face to face contact.    Traditional education activities consisted of writing for print media, whether it was for a legal journal or an article for a continuing educational conference.  Advocacy was also limited by the medium.   Attorneys could take out an advertisement on an important issue, whether it was on television or the newspaper, or write a letter to the editor or write an amicus brief.   Arguably, some aspects of old media were aimed at personal narcissism.  While advertising is aimed primarily at soliciting clients, it can also be used to feed the attorney’s personal ego.    Similarly, attorneys who could get on television as experts could develop status beyond their ability to get clients.   Old media was good for certain celebrity attorneys such as Racehorse Haynes, F. Lee Bailey and Johnny Cochran.

            New media consists of everything made possible by the internet.    On the one hand, old media is now available on the internet.   I can read the newspaper on my cell phone or find a lawyer within seconds on the Texas State Bar website.    There are vast amounts of free legal resources online, such as the Cornell Law Library’s Legal Information Institute.   However, what makes new media revolutionary is both its low barrier to entry democratic structure and its capacity for interactive communication.    Anyone can have a web presence and many of those platforms allow communication without the restrictions of a telephone line or face to face interaction.   

            Examples of new media include:

• Blogs.    Blog is a contraction of the term web log.   It is nothing more than a personal website where a person can upload “posts” and allow comments.  While blogs were once the subject of personal ramblings of interest to no one other than the author, there are many good legal blogs.  Blogs are beginning to be cited in judicial opinions.  See, e.g., In re General Motors Corp., 2009 Bankr. LEXIS 1687 (Bankr. S.D. N.Y. 2009); Chief Disciplinary Counsel v. Cohen, 2010 Conn. Super. LEXIS 3038 (Conn. Sup. 2010).  My blog is A Texas Bankruptcy Lawyers Blog.  Blogs qualify as new media because they are do-it-yourself media.  Anyone who can access the internet can create a blog.   Blogs can have an interactive feature through the comments section.   However, a blog requires a strong following to have a lively comments section.  
• List-serves.   List-serves are a connected series of email addresses allowing members to communicate with the group.    It is easy to start a list-serve.   I use a list-serve on Yahoo groups as a way to promote my blog.   It is common for bar associations to have list-serves for communication between lawyers on legal topics.  Most legal list-serves have closed membership (meaning that the moderator has to approve new members) and are moderated to ensure that only appropriate communications make the list.
• Professional networking and listing sites.   These include sites like Linked-In and Avvo which offer listings of professional credentials.   Linked-In is designed to allow professionals to connect with each other, while Avvo is designed for the general public.  Avvo allows professionals to submit credentials and obtain ratings.
• Twitter.   Twitter is a service that allows members to send messages of up to 140 characters.   While this may seem silly, the real value of Twitter is the ability to link attachments to the mini-messages and the ability to follow interesting people and hopefully have people follow your messages.   I am just starting to use Twitter and use it to promote my blog posts.
• Youtube.  YouTube allows users to upload short videos.  YouTube videos can range from cute cat videos to advertisements.   YouTube is also used by aspiring artists trying to be discovered.
• Facebook.   Facebook allows a user to create and page and post statuses and messages.   Facebook allows people to connect with “friends” who they may or may not know in real life.   I use Facebook to get the latest pictures posted by my kids and to keep up with people who I may have known in high school and college.   I have very few Facebook friends who I know form my professional world, although I did friend the former Chief Justice of the Texas Supreme Court because I knew his kids from soccer.
• Reddit.  I have never used Reddit.   However, it says “Reddit’s stories are created by its users.   Join the community, vote and change the world.”   
• Tumblr.  Tumblr is another site I haven’t figured out yet.   It describes itself as “where tens of millions of creative people around the world follow things they love.”   My teenage daughter credits Tumblr on the occasions when she is familiar with world events.   
• Lawyer Websites.    Most businesses have websites today.   Websites are a form of lawyer advertising.   They barely qualify as “new media.”  Lawyer websites are not interactive and are usually prepared by professionals.   However, some of the content may actually come from the attorneys.

            For lawyers, new media allows the same functions of promotion, education, advocacy and personal narcissism.   However, it also allows purely personal communication as well.   The combination of the commercial and the personal is what makes new media exciting and fraught with peril.   

II.                The First Amendment

The starting point for ethics in social media is the First Amendment.    Social media is speech.    When ethics is used in the narrow sense of governmental regulation of attorney conduct, the First Amendment prescribes the outer limits of that power.   The First Amendment also impacts related areas such as liability for defamation and employment.   Here is a brief overview of some First Amendment concepts.

·         There is a hierarchy of First Amendment protections.   Speech on matters of public concern “occupies the highest rung of the hierarchy of First Amendment values.”   Snyder v. Phelps, 131 S.Ct. 1207, 1211 (2011).   Thus, members of a fringe religious group were entitled to protected from suit for intentional infliction of emotional distress when their protest of a marine’s funeral related to matters of public concern.   The government may not discipline an employee for speaking in his capacity as a citizen on a matter of public concern.    Lane v. Franks, 134 S.Ct. 2369 (2014).   This issue arose in the social media context where an Assistant State’s Attorney was terminated for publishing blog posts containing documents he obtained through public records requests with regard to the investigation of a police shooting.   The Court found that even though some of the documents posted related to his duties as an ASA, they became public documents once he obtained them through an open records request.   The Court found that the attorney was speaking as a private citizen on a matter of public concern.  

·         The First Amendment sets the boundaries of private liability for defamatory speech.     In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Court held that a public figure alleging defamation had to prove “actual malice” in order to recover. Actual malice means knowledge that the statement was false or reckless disregard of whether it was true or false.   In Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Court found that the states could allow recovery for defamation of a private figure for “any standard of care except liability without fault.”  Several years later, the Court held that that a public figure could not recover damages for intentional infliction of emotional distress based on a vulgar parody unless it showed that it contained a statement of fact and was made with actual malice.   Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988).

·         The First Amendment offers less protection to “commercial speech” than communicative speech. Commercial speech consists of “speech proposing a commercial transaction.”  Ohralik v. Ohio State Bar Association, 436 U.S. 447, 455-56 (1978).  “(W)e … have afforded commercial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, while allowing modes of regulation that might be impermissible in the realm of noncommercial expression.”   Id.

·         The government may prohibit commercial speech that is “false, deceptive or misleading” or which “proposes an illegal transaction.”   Zauderer v. Office of General Counsel,471 U.S. 626, 638 (1985).  “Commercial speech that is not false or deceptive and does not concern unlawful activities, however, may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest.”   Id.

·         In Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229 (2010), the Supreme Court found that requiring attorneys who qualified as “debt relief agencies” to state “We are a debt relief agency.   We help people file for relief under the Bankruptcy Code” was a permissible regulation of potentially misleading advertisements.   

·         Certain forms of speech are not entitled to any First Amendment protection.   These include speech intended and likely to incite imminent lawless action, obscenity, child pornography, defamation, so-called “fighting words” and speech presenting a grave and imminent threat that the government has the power to prevent.   On the other hand, the government does not have the power to ban false statements in general.   United States v. Alvarez, 567 U.S. ___ (2012).

·         “Although the internet is the latest platform for anonymous speech, online speech stands on the same footing as other speech—there is no basis for qualifying the level of First Amendment scrutiny that should be applied to online speech.”   Fodor v. Doe, 2011 U.S. Dist. LEXIS 49672 (D. Nev. 2011).   

Taken together, this survey illustrates that several old media principles remain viable for new media as well.

• When attorneys advertise on social media, they are subject to state regulation.  The state can prohibit advertising which is false, deceptive or misleading and can adopt reasonable regulations to prevent this.
• When an attorney speaks on a subject of public concern, such as discussing important cases and rulings, her speech is entitled to the greatest protection available.
• Speech which is claimed to be defamatory is analyzed the same whether it is on new media or old media.

III.             Defamation

Defamation is not a purely ethical issue.   ABA Rule 4.1 governs Truthfulness in Statements to Others.    While it is unlikely that an attorney would face a grievance for general false statements about others, it is growing increasingly likely that statements made in social media could lead to a lawsuit for defamation.   Because lawyers make their living from representing people in litigation rather than parties to litigation, avoiding suits for defamation is an application in practical ethics.

Several recent cases have dealt with defamation in the context of social media.  The most important recent case dealing with defamation and blogging involved Crystal Cox, a self-proclaimed “investigative blogger” who became convinced that a bankruptcy trustee was up to no good.  She posted articles that accused the Trustee in the Summit Accomodators, Inc. bankruptcy of fraud, corruption, money laundering and other illegal activities in connection with the bankruptcy case.    The District Court found that most of Ms. Cox’s statements “employed figurative and hyperbolic language” and were not subject to liability.  Nevertheless, it found that a blog post accusing the Trustee of failing to pay $174,000 in taxes was sufficiently specific.     The Court also found that the plaintiffs were not required to show either negligence or actual damages because Ms. Cox had failed to submit “evidence of her status as a journalist.”   Ms. Cox was held liable for damages in the amount of $2.5 million.    On appeal, the Ninth Circuit reversed.  Obsidian Finance Group, LLC v. Cox, 740 F.3d 1284 (9^th Cir. 2014).   The Court rejected the argument that the Gertz negligence standard only applied to the institutional media.  It found that “liability for a defamatory blog post involving a matter of public concern cannot be imposed without proof of fault and damages.”   The Court elaborated:

We agree with our sister circuits. The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others' writings, or tried to get both sides of a story. As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable: "With the advent of the Internet and the decline of print and broadcast media . . . the line between the media and others who wish to comment on political and social issues becomes far more blurred." (citation omitted). In defamation cases, the public-figure status of a plaintiff and the public importance of the statement at issue—not the identity of the speaker—provide the  First Amendment touchstones.

740 F.3d at 1291.

Other cases involving social media and defamation include:

• Wallace v. Perry (In re Perry), 423 B.R. 215 (Bankr S.D.Tex. 2010)  Debtor forwarded anonymous blog post about a business partner with whom he was having a dispute.  Debtor was found liable for a nondischargeable debt for willful and malicious injury.
• Bui v. Do (In re Do), 2013 Bankr. LEXIS 1463 (Bankr. W.D. Tex. 2013).   Debtor accused plaintiff of being a communist sympathizer on his website.   Debtor held subject to a nondischargeable debt for willful and malicious injury.
• Purser v. Scarbrough (In re Scarbrough),  2014 Bankr. LEXIS 3682 (Bankr. W.D. Tex. 2014).   In one small piece of a much larger case, the Court found that posting video obtained as evidence in a case to YouTube with regard to a candidate for School Board was evidence of Debtor’s intent to harm plaintiff.   Court rejected argument that this was protected First Amendment speech.   (I represented the defendant and am appealing this ruling).    
• Franco v. Cronfel, 311 S.W.3d 600 (Tex. App.—Austin, 2010, no writ).   Disgruntled client posted scathing review of attorney on the Ripoff Report.  The Defendant filed a Motion for Partial Summary Judgment asserting that the attorney, who was acting as a state court receiver, was a public figure, and that the Plaintiff had not produced any evidence of actual malice.  The trial court granted the public figure motion and denied the no evidence motion.   On appeal, the Court affirmed denial of the no-evidence motion for summary judgment and found that it lacked jurisdiction over the receiver’s cross-appeal on the public figure ruling.   While the case is not very useful from a precedential standpoint, it shows the difficulty that can arise from online postings.
• Martin v. Daily News, 2009 N.Y. Misc. LEXIS 3858 (N.Y. Sup. Ct. 2009).   Newspaper ran several stories about alleged corruption in the courts, one of which made a factual misstatement.  An attorney who was involved in the case posted two blog entries which described what occurred in the case.   The Judge sued both the newspaper and the attorney.   The Court dismissed the claims against the attorney for the blog postings.  

Generally, defamation law requires a four part analysis: 

1. Was the statement made with regard to a fact or was it an opinion?  Opinions cannot be defamatory.   Only factual statements can be defamatory.Was the statement false?   Only false statements can be defamatory.  Garrison v. Louisiana, 379 U.S. 64 (1964).  This facet of American law distinguishes it from the law in some countries such as Sweden where a true statement may give rise to criminal prosecution if it is meant to be vilifying.
2. If the statement was false, was the subject of the statement a public figure?  If a public figure is involved, the plaintiff must show that the statement was made with actual malice.   If the statement involved a private figure, it is enough that the statement was made negligently.   
3. If the statement was made with the appropriate intent, did it result in damages?   
4. In a case of defamation per se, damages are presumed.  Defamation per se consists of accusing a person of a crime or several other options depending upon the state.   In Florida, defamation per se includes accusing a person of having an infectious disease.   Klayman v. Judicial Watch, Inc., 2014 U.S. Dist. LEXIS 71045 (S.D. Fl. 2014).   Otherwise, the plaintiff must prove actual damages to prevail.

When blogging about a court opinion, a blogger can protect himself by reporting upon the facts found by the court or by clearly labeling statements as opinion.   For example, assume that in a case under 11 U.S.C. §§ 523(a)(2) and (a)(4), the defendant was sued for a determination of non-dischargeability based on fraud for failing to disclose that the property sold was subject to mold contamination and for embezzlement for misapplying funds received in trust to close the transaction.    The court finds that the debtor did commit fraud with regard to the mold contamination but does not find that the facts met the requirements for embezzlement.   Consider the following scenarios:

• The blogger writes: “The court found that the debtor knowingly failed to disclose mold contamination in the property” This is an objectively true statement assuming that the court actually said this.
• The blogger writes, “The debtor knowingly failed to disclose mold contamination in the property” The debtor could sue the blogger claiming that the statement was false.   However, the debtor would have to show that:  1)  the Court’s ruling was wrong; and 2) that the blogger was negligent in reporting the statement as a fact.   Given the fact that the statement was made based upon a court’s finding, it would probably be a nearly impossible case to meet.
• The blogger writes, “The debtor was clearly guilty of embezzlement, but the court denied relief.”  The blogger has made an affirmative statement of fact that can be proved or disproved.   Whether the debtor was “clearly guilty” of embezzlement could be a true statement or a false statement.    For example, if the court’s finding in favor of the plaintiff was based on the plaintiff’s failure to offer the defendant’s statement to the police where he admitted the embezzlement, then the statement could be true even though the court did not make this finding.   On the other hand, if the blogger made the statement based upon his own unrelated experience with the real estate agent without any personal knowledge about the case or the record, then the statement could be found to be false and made with either reckless intent or actual malice.   
• The blogger writes, “In my opinion, the evidence received was sufficient to establish embezzlement” and the blogger genuinely held that opinion. The blogger would be making a statement of opinion which would probably not be defamatory.  
• The blogger writes, “The court found against the debtor because he received a $10,000 bribe from plaintiff’s counsel.” The blogger would be subject to a finding of defamation (assuming that he did not have actual evidence of the bribe and its effect on the ruling) and would be subject to a grievance under ABA Rule 8.2 which says that “(a) lawyer shall not make a statement that the lawyer knows to be false  or with reckless disregard as to its truth or falsity concerning the . . integrity of a judge . . . .”  

IV.             Common Ethical Perils of Social Media

There are several areas where the ABA Model Rules intersect with social media use as well as several additional areas not covered by the rules.   These include:

•  Preserving client confidences under ABA Rule 1.6;
• Trial publicity under ABA Rule 3.6;
•  Advertising under ABA Rule 7.2;
• Derogatory statements about an adjudicative official under ABA Rule 8.2;
• Conduct prejudicial to the administration of justice under ABA Rule 8.4; and
•  Recusal or disqualification of the Court.

1.      Client Confidences

Preserving client confidences and privileged information is one of the highest duties that an attorney has.    When an attorney blogs about his cases and clients there is a risk of disclosing confidential information.   ABA Model Rule 1.6(a) prohibits an attorney from revealing “information relating to the representation of a client” unless the client gives informed consent or it is necessary for the representation.    This duty is more stringent than simply preserving attorney-client communication.   

Several cases demonstrate how disclosure of client information on social media can pose a problem for attorneys.  In one case, a public defender began publishing a blog titled The Barrd Before the Bar to help her cope with the stresses of practice.   She candidly described her clients’ circumstances, referring to them by their first name or their jail identification number.  Not only was she terminated from her position, but the Illinois Attorney Registration and Disciplinary Commission filed a complaint against her, resulting in a 60 day suspension of her license.   In re Peshek, 798 N.W.2d 879 (Wisc. 2011)(the published opinion resulted from a petition for reciprocal discipline in Wisconsin).   Another attorney, faced with a scathing review from a client, posted “personal and confidential information about the client that Ms. Skinner had gained in her professional relationship with the client.”   The Georgia Supreme Court rejected the attorney’s request that discipline be limited to a public reprimand.   Matter of Skinner, 740 S.E.2d 171 (Ga. 2013).    In contrast, a court found that an attorney who blogged about public aspects of his clients’ cases was within his First Amendment rights.  The Court stated:

It is settled that attorney speech about public information from cases is protected by the First Amendment, but it may be regulated if it poses a substantial likelihood of materially prejudicing a pending case.

Hunter v. Virginia State Bar, 744 S.E.2d 611, 619 (Va. 2013).    Thus, even though the information may have been embarrassing to the client, the attorney was permitted to blog about it because of the First Amendment protection.

2.      Trial Publicity

As indicated by the quote from Hunter above, an attorneys’ right to discuss a pending case may be limited if it is likely to materially prejudice a pending case.   This prohibition is contained in ABA Model Rule 3.6 which bars

an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter

The peril of extrajudicial statements is illustrated by an incident in the Paula Deen litigation.   An attorney representing the Plaintiff tweeted his opinions about Paula Deen and the case.   The Defendants then sought to have him disqualified on the basis that he had violated Rule 3.6(a).   The attorney then sought to have the motion with the offending tweets sealed.   The Court denied both the motion to disqualify and the motion to seal.   The Court stated:

(T)he Court is unsealing the Billips tweets that directly and arguably relate to this case. . . . Those statements were the legitimate subject of a disqualification motion under the rules of professional conduct, which prohibit extrajudicial statements by a lawyer who reasonably believes that his comments will be made public and are likely to materially prejudice an adjudicative proceeding.   (citation omitted).   At the public hearing on the disqualification motion, Court referenced these tweets and found that they constituted improper comment about the merits of pending litigation—essentially stating as fact what his client was alleging.  While the Court noted that the ethics code presumes that such demeaning comments tend to prejudice the proceedings, it determined that the disqualification of counsel was not an appropriate sanction under the circumstances of this case.   But because the Court analyzed Billups’ extrajudicial comments about this case in assessing the merits of a nonfrivolous motion to disqualify him due to their improper nature, and because defendants have never sought to have those comments shielded from public view, the Court finds that they should no longer be sealed.   A further relevant consideration:  Mr. Billups’ comments add little, if anything, to the rather incendiary allegations set out in plaintiff’s amended complaint, a document already a part of the public record.  That no doubt explains why defendants not only never sought to seal those extrajudicial statements but, after discovering their existence, themselves placed the tweets in the record of these proceedings.

Jackson v. Deen, 2013 U.S. Dist. LEXIS 65814 (S.D. Ga. 2013) at *15-16.   While the attorney in this case was spared disqualification, he was subjected to a very public tongue-lashing from the Court.   

3.      Advertising

Advertising is an area where the state may regulate attorney speech.   However, determining what constitutes advertising is not always easy.   In Hunter v. Virginia State Bar, 744 S.E.2d 611 (Va. 2013), cert. den., 133 S.Ct. 2871 (2013), an attorney maintained a blog titled This Week in Richmond Criminal Defense.   The blog described the attorney’s successes in court.  Indeed, twenty-two out of thirty postings concerned his cases.    The blog was hosted on the firm’s website which asked “Do you need Richmond attorneys?”     The Virginia State Bar filed a disciplinary proceeding on several grounds including the fact that the blog postings did not contain a disclaimer.   The trial court found that the blog constituted advertising and should have included a disclaimer.  The attorney contended that the blog did not constitute advertising and that the court below had violated his First Amendment rights.    The Court rejected this position, stating:

(T)he inclusion of five generalized, legal posts and three discussions about cases that he did not handle on his non-interactive blog, no more transform Hunter's otherwise self-promotional blog posts into political speech, "than opening sales presentations with a prayer or a Pledge of Allegiance would convert them into religious or political speech."

Id. at 498.

            On the other hand, an attorney who sent unsolicited faxes containing an Attorney Malpractice Report was found not to have sent solicitations under the Telephone Consumer Protection Act.   According to the Court, because the attorney “furnished information about attorney malpractice lawsuits; and the substantive content varied from issue to issue; and the reports did not promote commercial products,” they did not constitute solicitation.    Stern v. Bluestone, 911 N.E.2d 844, 846 (N.Y. App. 2009).    While this was a case under the TCPA, the issue of distinguishing between commercial solicitation and informational speech is the same.   This is an example of why context matters.   

In both the Hunter and Stern cases, the attorney provided information about cases to promote his business.   However, in Hunter, the information provided was about the attorney’s exploits, while in Stern, the information demonstrated the attorney’s knowledge.    Indirect promotion by demonstrating knowledge will not ordinarily constitute advertising.

4.      False Statements About the Qualifications or Integrity of a Judge

While it is not unusual for lawyers to complain about judges that they are unhappy with, social media multiplies the opportunities for griping to lead to a grievance.

According to ABA Model Rule 8.2(a):

A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.

Attorneys have faced disciplinary action when they:  “wrote in (a) blog that the judges, guardian, ad litem and other attorneys involved in the guardianship proceedings engaged in improprieties including theft and embezzlement,” Denison v. Larkin, 2014 U.S. Dist. LEXIS 111902 (N.D. Ill. 2014)[1]; referred to one judge as “an asshole” and another as “Judge Clueless,”   Complaint filed in Matter of Peshek, No. 09 CH 89, Illinois Attorney Registration and Disciplinary Commission; and called a judge a “witch” in a blog, “Lawyer Agrees to Reprimand for Tirade About Judge,” ABA Journal (June 11, 2008).    These are examples of blogging that will not enhance an attorney’s professional standing.

5.      General Dishonesty and Interference with the Administration of Justice

ABA Model Rule 8.4 contains several general ethical violations, including to:

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) engage in conduct that is prejudicial to the administration of justice.

In the Denison case discussed above, the attorney’s claims of corruption in her blog also led to disciplinary proceedings brought under Rule 8.4(c) and (d).  

6.      Facebook Friends and Judicial Disqualification

Anyone who has ever spent much time on Facebook probably knows that there is only a tenuous connection between Facebook friends and real world friendships.   Nevertheless, when a Judge “friends” a participant in litigation, it may raise questions about the judge’s impartiality.   When the judge was Facebook friends with the prosecutor, this was grounds for disqualification in Domville v. State, 103 So.3d 184 (Fl. App. 2012).  However, in another case, the fact that the judge was Facebook friends with one of the prosecution’s witnesses and became upset when defense counsel accessed his page did not require recusal.  State v. Madden, 2014 Tenn. Crim. App. LEXIS 208 (Tenn. Cr. App. 2014).    In the Madden case, the Court said that the defendant had to show not only the relationship, but how it impacted the case:

Simply establishing that a trial judge is acquainted with a lawyer or other person connected to a case does not establish an abuse of discretion in the denial of a recusal motion.  (citation omitted).   There must be some connection between the judge’s relationship with a lawyer, party, or witness and some action taken in the case.

Madden, at *19-20.   While the Madden case is probably accurate in referring to Facebook friends as mere acquaintances, it seems to underestimate the appearance of favoritism.  

A good article which contains additional ethical scenarios is “10 Tips for Avoiding Ethical Lapses When Using Social Media” by Christina Vassiliou Harvey, Mac R. McCoy, Brook Sneath in the January 2014 issue of Business Law Today.

V.                Tips for Using Social Media

Social media can be a valuable tool for professional development as well as providing good experience sharpening your writing and knowledge of current issues.    Obviously, a trip to the grievance committee or a lawsuit would wipe out these benefits.  Here are my thoughts about smart use of social media.   These are mostly targeted to blogging, since that is where I have the most experience.   However, many of them will apply across platforms.

1.                  Decide why you are using social media.   An education and advocacy blog is subject to different rules than one aimed at advertising the lawyer’s services.    Advertising is generally incompatible with the purposes of social media since many state bars require pre-screening.   If you have to submit each post to the bar, pay a fee and wait for a decision before posting, your blog will not be very timely and it will get expensive quickly.   

2.                  Develop a theme and a tone.   A blog is partially about building your online brand.    Come up with a theme and a style of writing that can be positively associated with you.   My theme is to write primarily about Texas cases and national issues.   Tone is harder to define.   Most of my posts follow the format of:  a lead paragraph introducing the post, a description of what happened (the facts of the case), how the court decided the issue and why it matters.    By dividing the posts this way, readers can go to what they care about.   By keeping my opinion (why it matters) at the end, the reader can make their own decision about the case before getting to what I think about it.   That way, if the reader disagrees with my conclusion, he can still get some value from the post.   I also try to describe complex legal situations as clearly as I can and rely on the occasional pop culture reference to keep the writing crisp.    Generally I try to keep my writing positive, pointing out how the case can be useful to the practitioner.   When writing about ethical issues, I try to frame the case as a cautionary tale as to how the person made choices which could have been avoided.   Most of the time when I write about a case, I either agree with the result or take a neutral editorial tone.   When I disagree with an opinion, I try to make clear that I am expressing my opinion and give reasons for that opinion.   I also avoid criticizing the judge or the lawyers, preferring instead to disagree with the result.

3.                  Don’t overly promote yourself/don’t advertise.   Whenever a blog is about the blogger and not the content, it is moving dangerously close to advertising.    I rarely write about my own cases.   There are several good reasons for this.  I prefer to write about written opinions since they provide something objective to report.   I also prefer not to write about cases where I lost since they are likely to focus unpleasant attention on myself or my client.   The universe of interesting cases that I am involved in and can write about without embarrassment is pretty small.  Another reason not to overly focus on my own cases is that at some point it can cross the line into advertising.   If a blog discusses the results of cases or comments upon legal issues, it is not advertising.   However, a blog devoted to the attorney’s exploits in court in which he always prevails against better funded opponents, then the blog is advertising or possibly fiction.

So what is the difference between educational blogging and advertising?  In my view, it is the difference between demonstrating the attorney’s expertise and insight as opposed to talking about how brilliant the attorney is.  If you have to say it out loud, it probably isn’t true.

4.                   Be careful to report objective facts or to give opinions and distinguish between the two.   As discussed above, defamation will not apply to true statements or opinions.   For your own credibility and your financial interest, it is best to stick to facts that appear in the record or are easily verified.   Further, the credibility of your blog will depend upon the credibility of your reporting and the quality of your opinions.   While the law respects contrarian opinions, as shown by dissents which later become law, opinions which are merely inflammatory or based on the author’s prejudices will not build credibility.

5.                  Do some actual reporting when you can.   Sometimes an opinion may leave out critical facts that the parties took for granted.   In this case, it can be helpful to consult the underlying pleadings, prior court orders and lower court opinions to shed light on the court’s opinion.    Since all of this information is available on PACER, it is appropriate for a blogger to look this information up and explain how the court’s conclusions could have been influenced by facts appearing in the record but not the opinion or questioning why certain facts did not influence the opinion.   This is simply good legal journalism.

6.                  Once you develop a good product, promote it.   The wider your blog is distributed, the more benefit you will receive.   I promote my blog through my own listserve.  It is also distributed through the ABI Blog page and the State Bar of Texas blog page.  

7.                  Moderate the comments to your blog!    99% of the comments I receive are spam.   They tend to obscure the substantive comments, although the comments from escort services are interesting.  As a result, I delete spam comments before they ever post.  Sometimes a commenter will say things that are defamatory or that you don’t want to be associated with.   For example, if a commenter says that “Judge X hates women” that is probably a good comment to delete.  Substantive comments will build the credibility of your blog while nasty, irrelevant or incoherent comments will take away from it.    

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[1] The opinion involved a suit brought by the disciplined attorney against the Illinois Attorney Registration and Disciplinary Commission for copyright infringement for using her copyrighted blog against her.   The case was dismissed for failure to state a cause of action.