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Stacey Laskin
The National Law Journal
06-11-2007

Courts have expressed apprehension about jurors who blog during trials. Now they may have to start worrying about defendants.

In a recent Boston malpractice suit, pediatrician Robert P. Lindeman admitted, while on the stand, that he was the creator of "drfleablog," a Web log detailing his disdain for malpractice litigation and revealing information about the case his lawyers had mailed to him. Vinroy Binns and Deborah Binns v. Robert P. Lindeman and Natick Pediatrics, No. 2003-4544 (M.A.).

Lindeman did a Web search on the plaintiff's attorney, Elizabeth N. Mulvey, and discovered a set of Power Point slides that Mulvey had once made for a lecture. He included a link to the Power Point presentation on his blog.

After receiving a tip about the link from another lawyer, Mulvey found the blog. She surprised the pediatrician in court by asking him on the stand if he was Dr. Flea. Lindeman admitted he was the site's ghostwriter. He settled out of court the next day.

Lindeman was on trial for allegedly failing to diagnose diabetes in patient Jaymes Binns, who died a few weeks later from a complication of the disease.

On his blog, Lindeman said his attorneys informed him that only 3 percent of a jury's decision comes from the medical details. The rest is based on the physician's character, as established during the trial.

"The only tack that has a prayer of prevailing is to prove to the jury that the doctor is a drooling, blithering idiot," Lindeman wrote. "Flea's only remaining fear is that the (female) plaintiff's attorney will be mean to him." Lindeman, who was unavailable for comment, has recently deleted the content from the blog. His attorney, Paul R. Greenberg of Rindler Morgan in Boston, declined comment.

Attorneys should make sure clients have not posted anonymous information on the Internet that could affect their trial because it is still considered to be a public forum, said Mulvey, of Boston's Crowe & Mulvey.

"Just like anything else a client may have written or said in a lecture, it is a potential source of prior impeaching information." Lindeman's action "seems to me like such an obviously stupid thing to do," said Ken Withers, the director of judicial education and content for The Sedona Conference, an Arizona-based nonprofit research organization, which publishes a guide to confidentiality and public access.

"Some people live in a fantasy world," he said. "They believe what they say or do on the Internet is somehow private. They may believe that running a blog shields them from identity -- it does not. It would be no great effort for anyone to discover the source of a posting or the host." A New Hampshire case involving a juror who posted entries about court duty on his blog raised similar concerns earlier this year, prompting legal experts to predict that warnings on blogging may become a regular part of jury instructions and voir dire.

Nancy Slonim, a representative from the American Bar Association's Chicago office, said there are no specific guidelines regarding client blog use mentioned in the ABA ethics code. She also said this seems to be the first time a blog has affected a trial in such a way.

Still, Mulvey warns that blogs and other social networking sites such as Facebook and MySpace can tip off opposing council.

Mulvey, who represents mostly younger individuals, said she always tells clients to assume their mothers and attorneys working on a lawsuit might be reading profiles or clicking through posted pictures.