Bloggers Have Ethical Obligations Too

             In my last post I commented (again) on the obligation of governmental officials to use the powers we grant them for the public’s benefit and not their own.  But bloggers, I have discovered, have ethical obligations too, and it was for ethical reasons I decided I could not comment on a recent Court of Appeals opinion (Bojangles v. Town of Pineville).

            No, it was not my case, but it was a case prominently cited by opposing counsel at a Board of Adjustment hearing and on certiorari review in a dispute I am involved in over the vested rights status of a medical waste incinerator in the Town of Matthews (Mecklenburg County).  As I post this, the judge still has not rendered a decision.

             The ethical issue here is a conflict of interest.  Conflicts of interest arise when there is a fiduciary duty to someone else affected by your own financial or other interest.  When personal and fiduciary interests compete, you have a conflict.

             In the almost 3 years that I’ve written this blog I’ve learned that my readers include attorneys, planners, judges, elected officials, citizens and academics.  I get several hundred hits per post, a number that far exceeds my subscriber base.  I don’t know how much this blog influences opinions, but I certainly would like to think that it does. And for that reason alone, I have fiduciary duties to readers.

             So let’s delve a bit deeper to examine my personal interest.  When attorneys litigate, it’s a gift to be able to understand the merits of your opponent’s case, but it’s necessary that you find the zeal to understand and advocate your client’s position. 

             But therein lies the problem.  Commentary on new cases can become a conflict of interest in two ways.  First, when a new opinion comes out, it is practically impossible for me or any attorney to separate personal opinions of the case from a client’s interests.  And to the extent that you take your time to read this blog for education or insight, you need to know that my commentary is not colored by an existing client’s interests, just as you want to know that a financial reporter’s coverage of a company isn’t affected by his stock ownership.

             Second, and in most circumstances, my professional (and ethical) duty to my clients limits my ability to take positions here that are opposite their legal interests.  So, the best approach with Bojangles, I decided, was not to comment at all on what, to me, was a fascinating “canon of construction” case where two of the state’s finest land use attorneys took dictionaries in hand and duked it out over the meaning of the word “replace.”

             Sidebar:  I have used this space on numerous occasions to applaud the limits we place on overreaching or abusive governmental powers in the area of land regulation.  My previous positions in this blog have been consistent with the position I would have taken on the Bojangles case, which would have been consistent with my client’s position in the incinerator case.  But that still doesn’t mean that commenting would be ethical.  In fact, the essence of a conflict is that it should prevent you from engaging in the decision regardless.  End sidebar.

             Legal bloggers, to my knowledge, have no codified ethical standards.  Accordingly, I have to use a “gut check.”  On a couple of past occasions my gut check told me that disclosure of a personal connection to the case was all that was needed. Here, it required more.

             Each time a case comes out many folks ask me what my take on it will be, and Bojangles has been no different.  When asked, I’ve explained my dilemma. At some point I might be clear to comment.

             In the meantime, stay tuned.  A recent case out of Cumberland County provides lots of fodder for how a zoning ordinance should be interpreted.  And I’ll tell you all you need to know about it.

             Scroll down to read recent posts.  Click on topics of interest in the right hand column for other posts. For email alerts on new posts, click the “sign me up” button above.  And forward to others who might be interested.

2 Responses to “Bloggers Have Ethical Obligations Too”
  1. Jon Lowder says:

    This might be a silly question, but that’s never stopped me before. Would it make sense to clarify the ordinance by making a simple change – adding a hyphen to replaced so it reads “re-placed.”

    • Tom Terrell says:

      It might. I’d have to pull the Pineville zoning ordinance to see exactly how it is used in full context. It would probably be easier just to define the word. Adding a hyphen is so subtle that only someone with a classic education and an elevated IQ would get it.

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