Hello everyone and welcome to this edition of the JACPA Ethics Alert. This Ethics Alert will discuss the recent disciplinary charges against a Virginia lawyer for violating Virginia’s disciplinary rules related to client confidentiality and advertising for blogging about his former clients and closed cases.
The disciplinary case was scheduled for a hearing before a Virginia Bar panel on Oct. 18, 2011. According to media reports, the case appears to be the first time the Virginia Bar has charged a lawyer with misconduct alleging that blogging was a violation of the Bar advertising rules.
The criminal defense attorney apparently has a blog that is accessible on the law firm’s website which discusses his former cases (without naming the clients or obtaining their permission) and he also writes about substantive criminal justice issues. The charge of misconduct states that the lawyer blogged about information that would be “embarrassing” or “detrimental” to his clients, including discussing the case of a juvenile client and using a pseudonym for the client’s name. The lawyer apparently conceded that he did not obtain the consent of his clients discuss the cases; however, the matters he discussed on his blog are in the public domain and he had the permission of the juvenile client’s parents to talk about that case.
The misconduct charge also alleges that the purpose of the lawyer’s website (and presumably all lawyer websites) is to advertise and market the firm, pursuant to same, any discussions of the lawyer’s cases are advertising and must include a disclaimer “that puts the case results in a context that is not misleading.” The lawyer argued that the blog is news and commentary and that a requirement that he include a disclaimer would be a violation of his First Amendment rights.
Bottom line: the Florida Bar rules regulating advertising do not currently directly address blogging; however, Bar Rule 4-7.2(c)(1)(F) prohibits “any reference to past successes or results obtained”. Also, any online public discussions of confidential client information in a public forum (even if the client’s name is not mentioned) may violate lawyer/client confidentiality.
The epic clash between the digital/electronic age and the various State Bar’s attempts to regulate a lawyer’s electronic communications rolls on…
Be careful out there!
As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, do not hesitate to contact me.
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