Writers Beware: Media Liability Exposures for Attorneys and Law Firms

Whether lawyers become writers or writers become lawyers, they are kindred spirits. Lawyers are prolific communicators and content creators. Not only do clients rely on keen advocacy skills, but public speaking and the writing of books, treatises, articles, blogs, and white papers demonstrate expertise and help attract new business. Increasingly, law firm websites include a virtual treasure trove of timely articles, podcasts, and newsletters covering a variety of substantive practice areas that highlight firm experience and knowledge. User-friendly digital platforms, including social media, facilitate the sharing of legal insight with other attorneys, clients, and the public.

The most recent Legal Technology Survey Report (2018 Survey), a report of a survey conducted annually by the ABA’s Legal Technology Resource Center, found that digital content and social media are important marketing resources for demonstrating expertise and communicating with and attracting clients.¹ In fact, according to the 2018 Survey, 24 percent of responding firms have blogs. Blogs, podcasts, and YouTube videos are a trending communications activity that will become more commonplace in the legal profession.²

While there are many tangible and intangible benefits of publishing content, the rewards are not without risk. Defamation, invasion of privacy, and copyright/trademark infringement are common tort exposures that may arise from law-related content, including advertising. Such lawsuits, even if frivolous, are time-consuming and expensive to defend.

Solo practitioners and managing partners should contemplate publishing risks and implement reasonable risk mitigation as an integral part of law practice management. As this article will explain, shifting media liability exposures to traditional law firm and personal insurance policies is not a slam dunk—and neither is contractual indemnification from the publisher. Additionally, there are ethical perils and responsibilities that must be considered carefully.

The Risky Business of Writing about Courtroom Experiences

While lawyers may think that they have the expertise necessary to avoid publishing pitfalls, lawsuits and ethical complaints tell a different story. Although most problematic content is caught during the editing process, representatives for legal publishers, none of whom would talk on the record, report that many claims for defamation and copyright infringement arise from content written by attorneys. Certainly, it is this author’s experience supervising media liability insurance claims that publishers, including specialty legal publishing companies, have been and will continue to be sued for content written by attorneys.

Courtroom participants as claimants. Attorneys frequently write about what they know—and writing about litigation is fraught with peril. Oftentimes, the claimants are other courtroom participants. Thus, it should be no surprise that attorneys, judges, and litigants are common libel plaintiffs against legal writers and mainstream media companies, particularly if the content is critical of events taking place in the courtroom.³ George Freeman, who is the executive director for the Media Law Resource Center (MLRC) in New York City and previously a vice president and assistant general counsel for more than 30 years for the New York Times, confirmed that judges and lawyers may be difficult libel plaintiffs. “Lawyers, judges and other businesspeople have the financial means and the knowledge to be troublesome,” he said.⁴

MLRC. The MLRC, which is a nonprofit membership association for media companies and defense attorneys, tracks defamation and privacy litigation against the media and publishes newsletters, journals, and books about media law.⁵ The MLRC’s numerous publications are written by attorneys with media law expertise. Freeman said that despite their depth of experience, the MLRC has a media liability insurance policy to protect the organization and its staff from publishing exposures. He added that defense costs, not to mention an adverse judgment, can be devastating for a nonprofit entity like the MLRC.

In its biannual survey on media verdicts, which was most recently published in 2018 for its subscribing members, the MLRC reported an increase in compensatory and punitive damages awards involving media defendants. It also reported that the average trial damages award in a defamation/privacy suit against the media was $3.2 million prior to post-trial relief. This does not include defense costs through trial, which, depending on the venue and complexity of the litigation, easily can exceed seven figures. While the MLRC’s focus is on defamation and privacy suits involving media defendants, its data is instructive with respect to average verdicts for defamation, especially because this is a significant exposure for any writer, including an attorney.

Ethical issues. In addition to potential tort liability arising from publication activities, lawyers—unlike mainstream writers—face exposure to ethical complaints if they write or blog about identifiable clients, courtroom participants, and litigation about which they have personal knowledge.⁶

Wendy Muchman is a senior lecturer at Northwestern University Pritzker School of Law and president of the National Organization of Bar Counsel (NOBC), whose 1,000 members investigate and, where necessary, prosecute violations of the ethics rules that regulate the professional conduct of attorneys in the United States and abroad. NOBC organizations also provide guidance and training to attorneys in their respective states. Despite attorney training regarding social media and well-publicized bar suspensions, she confirmed that ethical complaints continue on a national basis as attorneys blog, tweet, and use other social media platforms in violation of ethical rules.⁷

Muchman, who teaches legal ethics, has no shortage of teaching material. She discussed several surprising anecdotes about attorneys who were disciplined by their state disciplinary boards for making inflammatory comments about judges or breaching client confidences through social media. She warned that problems arise from attorneys’ immediate access to social media platforms and informal communications. “There wouldn’t be a problem if attorneys took the time to write more formally,” she said, “as if submitting a brief to a court.”⁸

Blog Day Afternoon

Law blogs—or, as coined by the legal industry, “blawgs”—are online journals or weblogs that focus on legal topics such as law and technology and trial techniques.⁹

Extent of blogging. Over the past few years, legal blogs have proliferated as lawyers have embraced this communications platform. Most big firms, in particular, use law blogs to leverage expertise and to help increase the firm’s placement and visibility on major search engines. The ABA Journal maintains a comprehensive list of 4,500 blawgs that are searchable by subject matter.¹⁰ “Above the Law” is one such blawg; with more than 1.5 million unique visitors a month, it is one of the most popular.¹¹

Ethics of blogging. Ironically, the legal ethics of blawgs is a popular discussion item among legal bloggers.¹² Blogging is an important outlet for professionals to inform clients about recent developments in their practice areas and to develop new business in a less formal and more interactive platform than traditional print publications.¹³ However, there are a number of ethical considerations that come into play that easily can bog down legal bloggers and others who write about their courtroom experiences, including ethical constraints on trial publicity, impartiality, and decorum of the tribunal.¹⁴ Legal bloggers must use care to ensure that blogs do not disclose confidential client information or breach other ethical requirements. Not surprisingly, legal blogs have drawn fire from clients, other courtroom participants, state and national bar associations, and attorney disciplinary bodies.

Legal blogging, as well as other public commentary through social media, has become so commonplace that the American Bar Association’s Standing Committee on Ethics and Professional Responsibility addressed the issue in Formal Opinion 480 on March 6, 2018.¹⁵ The opinion emphasized that attorneys

who communicate about legal topics in public commentary must comply with the Model Rules of Professional Conduct, including the Rules regarding confidentiality of information relating to the representation of a client.¹⁶

In short, an attorney must maintain confidentiality relating to the client’s representation unless the client has provided informed consent to the disclosure—especially with regard to a public disclosure taking place outside the scope of the legal representation, such as on a website posting or in the pages of a tell-all book.

A Tale of Two Types of Authors

Publication focused on courtroom experiences. Where legal ethics and book publishing torts collide is in the art-imitating-life drama of L. Kirk Nurmi and Jodi Arias. Nurmi was a public defender appointed by the state of Arizona to represent Arias in her highly publicized murder trial arising from the death of her ex-boyfriend, Travis Alexander, in 2008. After Arias’s conviction and life sentence in 2013 (following two capital murder sentencing mistrials because of deadlocked juries), but prior to the appeal of her murder conviction by a second law firm, Nurmi self-published a tell-all memoir, Trapped with Ms. Arias. As reported by various media outlets, Nurmi, in defense of his book, wrote that he felt a moral obligation to set the record straight about his client and the defensive strategy employed at trial.¹⁷

Arias, claiming that Nurmi’s self-published book was defamatory and included attorney-client confidences, brought a civil action for breach of fiduciary duty and unjust enrichment seeking a disgorgement of any profits from the sale of the book, as well as from Nurmi’s speaking engagements about the trial. The Arizona Bar Association added to Nurmi’s legal problems by seeking to suspend his license for violating attorney-client confidences. Ultimately, Nurmi agreed to disbarment and no longer practices law.¹⁸ Because of Son of Sam laws, including one in Arizona that prevents convicted felons from profiting from their crimes—and perhaps a little karma—Arias’s civil case against Nurmi has been stayed pending the outcome of her criminal appeal.¹⁹

Publication not focused on courtroom experiences. Not all attorney authors write about their courtroom experiences. On the polar-opposite end of the risk spectrum from both a legal and ethical standpoint is the feel-good book written by former ABA General Practice Chair Melanie Bragg, who is a solo practitioner in Houston, a motivational speaker, a writing coach, and the author of two other books. Bragg recently wrote Defining Moments—Insights into the Lawyer’s Soul, which was published in 2019 by the ABA. On its Amazon listing, the nonfiction work is described as a “roadmap for leadership and personal growth applicable to all audiences.”²⁰ Bragg interviewed former ABA presidents, judges, and attorneys from diverse practice settings, who provided practical and inspiring stories about their lives and the practice of law.

Being an author, Bragg said, enhances her credibility and visibility. “I can walk into a courtroom filled with my peers,” she said, “and the judge will say, ‘Hey, Ms. Bragg, I just read your book, and I loved it!’”²¹

Bragg and the ABA took reasonable steps to minimize publishing risks. Working closely with her ABA editors, Bragg allowed her subjects to review a draft of her manuscript for grammatical and typographical errors. The individuals whom she interviewed were not allowed, however, to make substantive corrections. The ABA also required those profiled in Bragg’s book to release the author and publisher from liability arising from the content, and they did so after reviewing the manuscript.

When asked about insurance coverage for her book, Bragg admitted that she did not contemplate insurance but would have considered a media policy had she been aware that the coverage existed. She is not alone. Media liability coverage typically is not offered to attorneys by brokers, but maybe that will change as a growing number of attorneys write and blog. Media insurance is an important risk-management consideration—especially for lawyers who publish provocative content.

Mitigating Content Risks through Insurance

Insurance is often the first line of defense with respect to expected and unexpected liability exposures. Media liability coverage, which is a specialty niche of insurance, is a standard coverage for media companies and other content creators, such as radio/television broadcasters, advertising agencies, freelance writers/authors, social media influencers, digital content companies, multimedia companies, book/newspaper publishers, and film and program producers/distributors. This coverage is generally available through professional liability insurance markets.²²

Importance of media policies. Media policies provide coverage on either a claims-made or occurrence basis for publishing, broadcasting, public speaking, social media, and advertising exposures. As such, it is not a surprise that Freeman, who knows and understands publishing exposures, maintains a media liability policy for the MLRC. Unfortunately, many attorneys may not fully appreciate writing risks or may not have adequate insurance for publishing risks. Blogs and social media, in particular, are relatively new communications platforms for attorneys and their firms, but attorneys may find that they do not have adequate insurance for communications activities that take place outside of the attorney-client relationship.²³

Mike Mansel, who has more than 35 years of experience as a professional liability insurance broker, is rare in that he places media and lawyers professional liability insurance on behalf of his clients. Mansel works for Aegis Insurance Markets in Truckee, California. He noted that attorneys, while providing excellent counsel for others, do not always fully consider their own exposures. “Lawyers are very lax in dealing with their own insurance,” he said. “They want to put it off.”²⁴ Mansel further explained that the usual suite of insurance coverages for firm liability exposures—lawyers professional, CGL, and network security—may not provide full coverage for a lawyer’s or firm’s writing and advertising exposures. Certainly, the devil is in the fine print of professional liability policies as coverage varies from insurer to insurer. To eliminate coverage issues arising from publishing risks, Mansel recommended the purchase of a media liability policy through a specialty insurance market.²⁵

CGL policy shortcomings. Media liability coverage is a type of specialized errors and omissions coverage that exists, in significant part, because of exclusions and shortcomings in the commercial general liability (CGL) policy, which is the go-to liability policy for most businesses.

The CGL policy provides coverage for third-party liability arising from a number of exposures, including “personal injury” and “advertising injury” under Coverage B. The International Risk Management Institute (IRMI) defines advertising injury and personal injury as “categories of insurable offenses that produce harm other than bodily injury.”²⁶ The perils covered under Coverage B of the CGL policy include false arrest, detention or imprisonment, malicious prosecution, wrongful eviction, slander, libel, invasion of privacy, copyright infringement, and misappropriation of advertising ideas.

While the list of enumerated perils is quite broad, there are approximately 16 exclusions that whittle away coverage. Coverage for communications companies, such as broadcasters, publishers, and advertising agencies, generally is precluded because of a sweeping exclusion in Coverage B that restricts coverage for companies involved in media- and internet-related business.²⁷ This exclusion, in particular, creates the need for niche media liability coverage for media and internet companies.

In 2012, the ISO published an amendatory endorsement (endorsement) excluding coverage for invasion of privacy relating to advertising and personal injury coverages.²⁸ Invasion of privacy is a key publishing and advertising peril and is often pleaded in combination with defamation.²⁹ Likewise, right of publicity, which is a privacy-related tort, is a common advertising exposure. Clearly, it is not the intent of CGL insurers to provide coverage for media companies under Coverage B.

However, the endorsement reflects that personal and advertising injury coverage for non-media insureds also has been eroded under the Coverage B insuring agreement, which is already quite narrow. This is problematic for policyholders who rely on their CGL policies for media-related exposures, such as advertising. While the latest coverage-narrowing amendatory endorsement likely is intended to insulate CGL insurers from the risk of a data breach in the context of network security and privacy, it also eliminates coverage for the four distinct invasion of privacy torts enumerated by William L. Prosser, which include false light, intrusion upon seclusion, publication of private facts, and right of publicity arising from content and the manner in which it was gathered.³⁰

There are a number of other policy limitations in the CGL policy that undercut coverage for media exposures for non-media companies:

• The coverage territory is not worldwide. With the global reach of digital content, claims can arise anywhere in the world.
• The insurance company has the right to select counsel and supervise the defense. Does counsel retained by the CGL insurer have the requisite expertise to manage intellectual property litigation and other media exposures?
• The insurance company has the sole power regarding whether to settle. This may be an issue of contention if the insured’s reputation or intellectual property is at stake.
• Punitive damages may be covered by the policy depending on the jurisdiction, unless specifically against public policy. In some states, such as New York, California, and Illinois, it is against public policy to insure punitive damages. This is because the intent of punitive damages is to punish and deter future conduct; if the damages are paid by a third party, such as an insurer, the punishment has been circumvented.³¹ Most media policies, on the other hand, provide unequivocal coverage for punitive damages or include most favorable venue language.³²
• Copyright infringement is specifically excluded except with respect to claims arising from “infringement in your advertisement” of copyright, trade dress, or slogan. There would not be coverage for copyright infringement, for example, arising from the publication of a white paper, newsletter, blog, or other noncommercial content.
• Trademark infringement is specifically excluded under the most recent ISO form and is arguably one of the most important coverages for any insured who advertises products or services.

Media liability claims are not predictable. The damages and defense costs can be high, and specialized underwriting and claims handling are required. As such, it is understandable for CGL insurers to limit personal and advertising injury coverage for media-related companies, essentially excluding professional liability coverage for such companies and requiring them to seek coverage from a specialty market. In fact, the media and internet blanket exclusion is nothing new—it has been around for many years. What is new, however, is that most businesses and organizations, including law firms, have become robust creators of content—much like a media company—because the internet has changed the way that firms and organizations communicate. Therefore, non-media companies that rely on the CGL policy for advertising and publishing exposures should assess their specific media-related exposures and weigh the policy’s numerous shortcomings against individual tolerance for risk.

The Scoop on Lawyers Professional Liability Policies

In the event of a media liability claim arising from an article, blog, advertisement, or book, an attorney and/or firm will naturally look to all insurance coverage options, including the lawyers professional liability (LPL) policy.

Unlike the CGL form, LPL forms are neither published by the ISO nor standardized. As a result, coverage varies from insurer to insurer and requires careful review. Policies written for large firms, for example, may have more bells and whistles in terms of manuscript wordings but also likely will have higher self-insured retentions, perhaps as high as $500,000. Policies for smaller firms may have lower retentions but also may be narrower in scope of coverage and/or have policy sublimits to cap exposure.

Legal services. A typical insuring agreement for an LPL insurer requires the claim to arise from an “act or omission in or by performance of Legal Services by the Insured. . . .”³³ The definition of legal services is necessarily one of the most important defined terms in an LPL policy as it defines the conduct subject to coverage. Most LPL policies provide some coverage for the insured’s publication of research papers or similar scholarly materials, as well as for presentation of legal seminars. Generally, such services must be performed without compensation or for relatively nominal amounts.

Clarification regarding coverage should be sought from the broker and/or insurer prior to the publication of a book or the launch of a blog. Likewise, clarification should be sought regarding coverage for firm advertising content. While LPL policies rarely include a specific exclusion addressing attorney advertising, Mansel advised that such conduct is rarely included within the definition of legal or professional services, which is a key term set forth in LPL insuring agreements.³⁴

Takeaway: variability of policies. Coverage under any insurance policy may be modified with coverage-broadening or -limiting endorsements based upon the underwriter’s risk assessment of the individual firm and loss history. The key takeaway with respect to LPL forms is that the coverage varies greatly by insurer.

Media Coverage under Cyber Policies

Network security and data privacy insurance policies (cyber policies) provide first- and third-party coverage for claims arising from the unauthorized disclosure of personally identifiable information and other private third-party information in the care, custody, or control of the named insured, as well as coverage for breach of the insured’s computer network. Some cyber policies include elective coverage for electronic media, which provides third-party liability coverage for claims arising from the insured’s website (relating to, for example, blogs, advertising, and other online content). Broader cyber policies provide elective coverage for the named insured’s media liability activities, which include the insured’s website and off-line media content. While it is always important to review an insurance policy in its entirety, including definitions, exclusions, conditions, and amendatory endorsements that may limit or exclude coverage, a broadly worded “media liability” coverage agreement under a cyber policy creates the potential for comprehensive media coverage.

Importance of cyber policies. Larry P. Schiffer, who is a partner with Squire Patton Boggs (US) LLP in New York City and chair-elect of the TIPS Cybersecurity and Data Privacy Committee, confirmed that his firm has a cyber policy.³⁵ His firm publishes several original blogs on a daily basis, with content ranging from employment practices liability to Brexit updates. During negotiations for the firm’s cyber policy, the insurer agreed to “throw in” without an additional premium the coverage agreement for media liability, which includes coverage for the firm’s blogs, social media, and other publications.

Variability of cyber policies. Like LPL forms, cyber policies differ with respect to breadth of coverage and are not standardized. (Cyber coverage may be available as an endorsement for LPL policies, especially for smaller firms.) Again, it is important to read the policy wording carefully and discuss with an experienced professional liability broker breadth of coverage to online and off-line media content. However, even broader cyber policies with media coverage agreements are unlikely to provide coverage for books written by insured attorneys—unless specifically scheduled as part of the policy—or for any media content, such as an article or book, that is created by an insured attorney or firm but distributed by a third-party publisher.

Popularity of cyber policies. Although a cyber policy may be a good solution for both digital and hard-copy media content created and distributed by attorneys and firms, many law firms still are not buying it. According to the ABA TECHREPORT 2018, only 34 percent of firms that responded to the survey purchase cyber insurance.³⁶

There Is No Place Like Home

A homeowners policy with a personal injury endorsement provides some coverage for publishing exposures, such as defamation and invasion of privacy—as long as the conduct giving rise to the claim meets the various requirements of the coverage agreement and is not excluded. Obviously, it is a nonstarter to look to a homeowners policy for coverage for any media-related content published by a law firm. A homeowners policy may be a potential source of coverage, however, for an attorney author or blogger whose content is not affiliated with the practice of law—and does not generate revenue.

Business activities exclusion. With respect to publication exposures, there are a number of obstacles relating to coverage. One of the most prominent is the business activities (or business pursuits) exclusion, which is a fundamental limitation on homeowners’ liability coverage.³⁷ Most homeowners policies define business as a “trade, profession or occupation engaged in on a full-time, part-time, or occasional basis.”³⁸ Business pursuits is typically defined as a “continual or recurrent activity carried out for financial gain.”³⁹ The actual wordings will vary by insurer.

Philpot litigation. The business activities exclusion in the homeowners policy currently is being tested by Nationwide Mutual Insurance Company against policyholder Timothy Philpot, who is a retired family court circuit judge and author.⁴⁰

Philpot was sued for defamation, false light invasion of privacy, and emotional distress stemming from his fictional novel Judge Z: Irretrievably Broken, which was published in 2016 by Ohio-based publisher Chilidog Press.⁴¹ The book, which is based upon his many years on the bench in Fayette County, Kentucky, explores the demise of marriage. The characters appearing in the book are described by the book’s disclaimer as fictional.

Philpot was sued by a local physician, Jitander Dudee, who claimed that there are similarities between himself and one of the book’s characters, Gupta Patel. Like the Patel character, Dudee is a Hindu doctor residing in Lexington, Kentucky, and was involved in a contentious divorce proceeding. Philpot presided over the divorce between Dudee and his ex-wife. Dudee claimed that the book is a “thinly veiled autobiography” that contains numerous false statements about him.⁴²

Upon receipt of the complaint, Philpot tendered his defense and indemnity to his homeowners insurer, Nationwide. Nationwide was not on Philpot’s side and filed a declaratory action seeking a court determination that the insurer does not have a duty to defend or indemnify Philpot under his homeowners and personal umbrella policies for a number of reasons, including the business pursuits exclusion.⁴³ The policy did not contain a personal injury endorsement covering defamation and invasion of privacy.

Philpot is winning the battle with Dudee, but he has not won the war. The trial court granted summary judgment for Philpot on the defamation and false light counts, which was affirmed by the First District Court of Appeals (Dudee did not appeal the emotional distress claim). The appellate court agreed with the trial court that the substantial truth of the offending statements barred the claims. Nationwide’s declaratory action is still pending.

Contractual Liability: Shifting Defense and Obligations to the Author

Author contracts with book and periodical publishers—legal and otherwise—usually require the author to defend and indemnify the publisher against claims arising from content.⁴⁴ The rationale behind the author’s duty to indemnify the publisher is that the publisher has to rely upon the work and assurances of the author, who is an independent contractor, explained Jonathan Kirsch.⁴⁵

Kirsch is a former book review columnist for the Los Angeles Times; a current book reviewer for the Washington Post and the Jewish Journal; a prolific author who has written more than 13 books; and an attorney who, for the past 30 years, has reviewed author manuscripts as part of his intellectual property and publishing law practice in Los Angeles. It keeps him busy. He estimated that approximately 25 percent of his author clients are attorneys who have written both fiction and nonfiction books.⁴⁶

Need for media liability insurance. Kirsch and Mansel both have firsthand experience with the industry practice of contractually obligating authors to defend and indemnify publishers for claims arising from content written by the authors but distributed by the publishers.

Mansel frequently works with authors and freelance journalists in the placement of media liability coverage because the vast majority of publishing agreements include this contractual obligation.⁴⁷ The premium will vary according to the nature of the media content to be insured; the risk management utilized by the author to mitigate exposure, such as a comprehensive legal review by Kirsch; the provocative nature of the work; and the expertise of the author. Other factors that impact the premium include the amount of the limits sought, whether the coverage trigger is claims-made or occurrence, and the amount of the self-insured retention.

Kirsch, too, recommended that his clients obtain media liability policies, citing shortcomings in CGL policies. “If you have personal assets to protect, it’s a prudent thing to do,” he said. “Some authors will not publish without insurance and place their assets at risk.”⁴⁸

“My clients are sophisticated,” Kirsch continued. “They aren’t surprised if there isn’t insurance coverage.” However, he added, “they are shocked that the publishing contracts oblige them to indemnify the publishers.”⁴⁹

Coverage under publisher policies. Kirsch noted that many publishers have broad media liability policies to mitigate their publishing risks.⁵⁰ These policies usually allow the publisher to extend coverage to an author as an “insured” at the publisher’s sole discretion. It is always a risk, however, for uninsured authors to assume that their publishers will provide a defense and pay for any loss unless contractually obligated to do so.

ABA indemnity. The ABA and other legal publishers provide outlets for attorneys to showcase their expertise, and it is prestigious for an attorney to be published. The ABA has more than 90 legal titles on its website, which have been written by third-party authors, such as Bragg. The ABA declined to provide a sample author’s publishing agreement for this article. As such, it is not known whether the ABA contractually agrees to defend and indemnify its authors, shifts this responsibility to its authors, or is silent on the subject of indemnity.

Tips for Reducing Media Liability Risk

Risk management is essential for any firm or attorney who creates and/or distributes media content, including advertising. A media insurance policy is only one method for mitigating exposure. Whether or not an attorney author or a firm decides to procure a specialty media policy, risk mitigation is crucial for avoiding publishing liability and ethical breaches. Reasonable and proactive content risk management includes the following:

Expert counsel. Retain counsel with expertise in media liability to review content and news-gathering methods. Books, articles, and blogs sometimes are critical of clients and other trial participants or disclose highly sensitive information. Any content that could be potentially defamatory or invade the privacy of a client should be vetted by a media attorney. When writing about real people and businesses, Kirsch said, authors should change their names and any identifying characteristics to prevent the ability to “triangulate identity” from physical appearance, tattoos, profession, and geographic location.⁵¹ “Do not provide any clues,” he cautioned, “to identify the real person.”⁵² Kirsch recommended that when an attorney writes about matters involving an identifiable client—even if there is a public record—the attorney should obtain informed, written consent from the client to prevent invasion of privacy and ethical breaches. Furthermore, Kirsch said, to mitigate any appearance of a conflict of interest, the client should receive independent legal advice to help evaluate whether to provide consent.⁵³

Disclaimers. Utilize a disclaimer to mitigate exposure. Kirsch recommended the use of a “muscular” disclaimer at the beginning of a book to limit liability.⁵⁴ The disclaimer should not be formulaic but should be written with respect to the individual nature of the work. Furthermore, the disclaimer should appear in a regular-sized font in a prominent place—on a separate page and not buried with the copyright notice. With respect to law practice books, Kirsch recommended that the disclaimer state that the law may have changed after the book was published, that laws vary from state to state, and that anyone with a legal issue should seek legal advice for his or her specific situation.⁵⁵

Photographs and licenses. Do not use photographs of employees in firm advertising or content without a written license. It is always important to get written consent from all employees whose images appear in blogs, advertising, and other firm media content. It is oh so easy—and free—to use photographs of firm members or staff to illustrate blogs, websites, advertising, and newsletters. Even worse, images of employees’ children are used. What happens if the employee in the photograph becomes disgruntled, and there is not a written release? What if the parent providing consent for a minor is not the custodial parent? Use of such images can give rise to misappropriation of likeness and right of publicity claims if the photographs are used for a firm’s commercial purpose. Use of a photograph of a minor child without valid consent can give rise to an invasion of privacy claim.

Images and the public domain. Never assume that internet images are in the public domain. With just a click of a mouse, internet images can be cut and pasted into a firm’s digital content. All third-party content should be licensed—especially if used in a commercial context. Failure to do so can give rise to a copyright infringement suit by the photographer of the image at issue, as well as a right of publicity action by any subject who may be identifiable in the image. A stock photo company, such as Getty Images, is a great place to find business images for a blog or web page banner. Once an image has been licensed, it also is important to comply with license restrictions. Just because a photograph has been licensed for use on a firm website does not mean that the same photograph can be used in television ads, billboards, or bus stops in Better Call Saul style. It is important to understand the scope and duration of the license.

Author’s contractual agreement with the publisher. Read and understand the terms of the author’s written agreement with the publisher. The majority (99.9 percent) of authors—all except those who are prolific, best-selling writers—are contractually obligated to defend and indemnify their publishers for claims arising from content. Authors usually sign a contract warranting that the content is free from defamatory, infringing, and otherwise offending content.

If the publisher is not contractually obligated to defend the author, consider what other sources of protection are available. This is where attorney authors need to do a deep dive into their insurance policies—and preferably well before any publication date, including the distribution of promotional material or the dissemination of galley copies or advance reader copies to reviewers, retailers, or other industry contacts. Mansel strongly recommended that authors purchase their own media liability policy, but not all authors heed this advice.

Negotiation. Attempt to negotiate favorable contractual terms with the publisher. While it is likely an exercise in futility, it never hurts to ask the publisher to agree to defend and indemnify the author contractually.

Of course, the publisher’s insurance policy must be in alignment with any such agreement. Most media liability policies will cover an author’s liability assumed under contract by the publisher for the types of claims covered under the policy. Additionally, an author can be added by endorsement as an “insured” under the publisher’s policy, or the book at issue can be scheduled specifically under the policy. However, most publishers, as explained above, will not extend insurance coverage to an author—or will not agree to do so contractually—unless the author is a proven best seller and the content is not likely to generate litigation.

At the very least, according to Mansel, the author should ask to be added to the publisher’s policy as an “additional insured” for liability arising from content contributed by the publisher, such as cover art or publicity material.⁵⁶ Kirsch recommended that authors closely review the additional insured endorsement because the wording often affirms that the additional insured (author) is covered with respect to vicarious liability caused by the named insured (publisher) but not directly caused by the additional insured.⁵⁷ Additional insured coverage is often misunderstood and is not a replacement for an author’s insurance policy.

Experienced insurance brokers. Work with an experienced professional liability insurance broker to identify media liability exposures. Websites, blogs, advertising, books, social media, hard-copy and digital newsletters, public speaking, third-party periodicals, and other media outlets are platforms that can give rise to media liability. Fully discuss personal and firm media exposures with an experienced professional liability broker like Mansel, who fully understands the intersection of lawyers professional, network security, commercial general liability, and media liability insurance. Evaluating coverage for media liability under potentially applicable policies and identifying potential coverage gaps are complex endeavors. The outcome of any such analyses is premised upon identifying the various media activities in which firm members are engaged and assessing the firm’s tolerance for risk.

Conclusion

Books, blawgs, articles, and social media commentary elevate the credibility of the attorney author and firm. However, these media activities are not without legal and ethical exposure—especially if provocative courthouse or other client drama is shared via a book, article, podcast, or social media platform without appropriate risk oversight and mitigation. Instead of being the hero or heroine, the lawyer may play the fool if such content gives rise to litigation or a disciplinary complaint. Attorneys and law firms should identify their various media exposures and engage in reasonable risk management, including the review and coverage analysis of relevant insurance policies.

Notes

1. Allison Shields, TECHREPORT 2018: Marketing, L. Tech. Today (Jan. 7, 2019), http://www.lawtechnologytoday.org/2019/01/techreport-2018-marketing.

2. Daniel Newman, Top Seven Digital Transformation Trends in Legal for 2019, Forbes (Dec. 18, 2018), http://www.forbes.com/sites/danielnewman/2018/12/18/top-7-digital-transformation-trends-in-legal-for-2019/#346b1266535b.

3. See, e.g., Mark S. Hurwitz, Defaming a Judge: Murphy v. Boston Herald, 29 Justice Sys. J. (2008), https://cdm16501.contentdm.oclc.org/digital/collection/judicial/id/184.

4. Telephone interview with George Freeman, Exec. Dir., Media Law Res. Ctr. (Aug. 14, 2019).

5. Media Law Resource Center, http://www.medialaw.org (last visited Nov. 2, 2019).

6. It should be noted that writers in the medical and psychiatric fields also have ethical responsibilities to clients and patients.

7. Telephone interview with Wendy Muchman, President, Nat’l Org. of Bar Counsel (Nov. 22, 2019).

8. Id.

9. Adrienne E. Carter, Blogger Beware: Ethical Considerations for Legal Blogs, 14 Rich. J.L. & Tech. 2 (2007), https://scholarship.richmond.edu/jolt/vol14/iss2/3.

10. ABA Journal Blawg Directory, A.B.A. J., http://www.abajournal.com/blawgs (last visited Nov. 2, 2019).

11. Robert Ambrogi, In New Ethics Ruling on Blogging, ABA Opines Like It’s 1999, Above the Law (Mar. 12, 2018), https://abovethelaw.com/2018/03/in-new-ethics-ruling-on-blogging-aba-opines-like-its-1999.

12. See generally ABA Journal Blawg Directory, supra note 10.

13. Seth L. Laver, Michael P. Luongo & Jennifer H. Feldscher, The Ethics Bog of Professional Blogs, Professional Liability Matters (Oct. 2, 2014) (Goldberg Segalla blog), https://professionalliabilitymatters.com/2014/10/02/the-ethics-bog-of-professional-blogs.

14. Model Rule 3.5, Impartiality and Decorum of the Tribunal, prohibits a lawyer from seeking to influence a judge, juror, prospective juror, or other official by means prohibited by law. Model Rule 3.6, Trial Publicity, prohibits a lawyer engaged in an investigation or litigation from making extrajudicial statements by means of public communication that “will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” This article merely skims the surface of ethical issues that can arise from an attorney’s use of blogs and social media. See generally Michael E. Lackey Jr. & Joseph P. Minta, Lawyers and Social Media: The Legal Ethics of Tweeting, Facebooking and Blogging, 28 Touro L. Rev. (July 2012), https://digitalcommons.tourolaw.edu/cgi/viewcontent.cgi?article=1138&context=lawreview.

15. ABA Standing Comm. on Ethics & Prof’l Responsibility, Formal Op. 480 (Mar. 6, 2018) (Confidentiality Obligations for Lawyer Blogging and Other Public Commentary), http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba_formal_opinion_480.authcheckdam.pdf.

16. Id.

17. E.g., Alison Frankel, Convicted Killer Jodi Arias Sues Her Ex-Lawyer over His Book About Case, Reuters (Oct. 26, 2017), http://www.reuters.com/article/legal-us-otc-arias/convicted-killer-jodi-arias-sues-her-ex-lawyer-over-his-book-about-case-idUSKBN1CV3G1.

18. Press Release, State Bar of Arizona, Attorney Laurence K. Nurmi Consents to Disbarment over Jodi Arias Book (Nov. 23, 2016), http://www.azbar.org/newsevents/newsreleases/2016/11/disbarment-laurencekirknurmi.

19. Arias v. Nurmi, CV 2017-014091 (Ariz. Super. Ct. July 13, 2018), http://www.courtminutes.maricopa.gov/viewerME.asp?fn=Civil/072018/m8369566.pdf.

20. Defining Moments: Insights into the Lawyer’s Soul, Amazon, http://www.amazon.com/Defining-Moments-Insights-Into-Lawyers/dp/1641054190 (last visited Nov. 2, 2019).

21. Telephone interview with Melanie Bragg, Attorney and Author of Defining Moments: Insights into the Lawyer’s Soul (Sept. 17, 2019).

22. Insurers include AIG, AXIS, CapSpecialty, CNA, Chubb ACE, Hiscox, Mutual Insurance Company of Bermuda, OneBeacon, QBE, and XL.

23. See generally T. Leigh Anenson, Absolute Immunity for Civil Liability: Lessons for Litigation Lawyers, 31 Pepp. L. Rev. (May 15, 2004), https://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1285&context=plr.

24. Telephone interview with Mike Mansel, Prof’l Liab. Ins. Broker, Aegis Ins. Markets (July 30, 2019).

25. Id.

26. Craig Stanovich, No Harm, No Coverage—Personal and Advertising Injury Liability Coverage in the CGL (Part 1), IRMI (Jan. 2007), http://www.irmi.com/articles/expert-commentary/no-harm-no-coverage-personal-and-advertising-injury-liability-coverage-in-the-cgl-(part-1).

27. Ins. Servs. Office, Inc., Form CG 00 01 04 13 (2012).

28. Ins. Servs. Office, Inc., Endorsement CG 24 13 04 13 (2012).

29. There are also a number of state, federal, and international laws, such as the General Data Protection Regulation, regulating the collection, use, storage, and transmittal of personally identifiable information (PII). A cause of action for invasion of privacy also may accrue in this context.

30. William L. Prosser, Privacy, 48 Cal. L. Rev. (Aug. 1960), https://lawcat.berkeley.edu/record/1109651?ln=en.

31. Craig F. Stanovich, Punitive Damages—Setting an Example, IRMI (June 2012), http://www.irmi.com/articles/expert-commentary/punitive-damages-setting-an-example.

32. Most Favored Venue Wording: Definition, IRMI, http://www.irmi.com/term/insurance-definitions/most-favored-venue-wording (last visited Nov. 2, 2019).

33. Berkley Ins. Co., LPL39450 (Oct. 2014) (emphasis in original), http://www.cmiprorisk.com/wp-content/uploads/2016/05/Policy-lawyers-professional-liability-39450-1014.pdf.

34. Email interview with Mike Mansel, Prof’l Liab. Ins. Broker, Aegis Ins. Markets (Nov. 22, 2019).

35. Email interview with Larry P. Schiffer, Partner, Squire Patton Boggs (US) LLP (Sept. 12, 2019).

36. David G. Ries, 2018 Cybersecurity, ABA TECHREPORT 2018 (Jan. 28, 2019), http://www.americanbar.org/groups/law_practice/publications/techreport/ABATECHREPORT2018/2018Cybersecurity.

37. David H. Hardy & Joseph P. Postel, Business Pursuits: Exclusions for Homeowners’ Liability Coverage, CLM (Oct. 28, 2014), https://clmmag.theclm.org/home/article/Business-Pursuits.

38. Ins. Servs. Office, Inc., HO 00 03 10 00 (1999), http://docs.nv.gov/doi/documents/home_policies/HartfordForms/Hartford_HO_00_03_10_00.pdf.

39. Insurance Exclusions for Business Pursuits, Digital Media Law Project (Nov. 4, 2019), http://dmlp.org/legal-guide/insurance-exclusions-business-pursuits.

40. Philpot retired in late 2017. He was a sitting judge when his book was published.

41. Dudee v. Philpot, Appeal No. C-180280 (Ohio Ct. App. Sept. 27, 2019).

42. Id.

43. Nat’l Mut. Ins. Co. v. Philpot, No. 5:17-cv-00-249-DLB.

44. Annalyn Kurtz, I Am a Freelance Journalist. Do I Need to Buy Liability Insurance?, Colum. Journalism Rev. (Nov. 13, 2017), http://www.cjr.org/business_of_news/journalist-liability-insurance-freelance.php.

45. Telephone interview with Jonathan Kirsch, Attorney, Author, Book Reviewer (Sept. 18, 2019).

46. Id.

47. Telephone interview with Mike Mansel, supra note 24.

48. Telephone interview with Jonathan Kirsch, supra note 45.

49. Id.

50. Id.

51. Telephone interview with Jonathan Kirsch, supra note 45.

52. Id.

53. Id.

54. Id.

55. Id.

56. Telephone interview with Mike Mansel, supra note 24.

57. Telephone interview with Jonathan Kirsch, supra note 45.