Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Virginia Supreme Court opinion which ruled that the Virginia State Bar cannot prosecute a lawyer for naming clients in a public blog; however, the Virginia Bar Rules can require a lawyer to place an advertising disclaimer on a blog originating from the lawyer’s website. The opinion is Horace Frazier Hunter v. Virginia State Bar, Record No. 121472 (February 28, 2013). The opinion is at http://www.courts.state.va.us/opinions/opnscvwp/1121472.pdf.
According to the majority opinion, the lawyer “authors a trademarked blog titled ‘This Week in Richmond Criminal Defense’, which is accessible from his law firm’s website…. The blog, which is not interactive, contains posts discussing a myriad of legal issues and cases, although the overwhelming majority are posts about cases in which Hunter obtained favorable results for his clients. Nowhere in these posts or on his website did (the lawyer) include disclaimers.”
The Virginia Bar presented evidence that the lawyer posted 25 discussions about specific cases and 5 discussions about legal issues on his blog. In 22 of the cases that were discussed, the lawyer had represented the criminal defendant and had obtained favorable results. The blog did not include a disclaimer stating that the results were not intended to suggest that he would obtain similar results in other cases, which was required for advertisements under the Virginia Bar Rules. The lawyer testified that he believed it was important to name his clients to give an accurate description of the case, and that he did not believe it was necessary to obtain their permission since the cases were a matter of public record. He also acknowledged that marketing was one of the reasons for his blog.
The Virginia Bar argued that the lawyer revealed confidential information that could be embarrassing and/or potentially injurious to the clients and therefore, the content of the blogs revealed confidential information and violated the Bar Rules if the lawyer did not obtain the client’s consent or an exception applied. The opinion disagreed and found that the information in the lawyer’s blog was a matter of public record and stated that “(t)o the extent that the information is aired in a public forum, privacy considerations must yield to First Amendment protections…in that respect, a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom.”
The opinion upheld the advertising disclaimer requirement of the Virginia Bar Rules stating that the posts were commercial speech and had the potential to be misleading, the Virginia Bar had a substantial governmental interest in protecting the public from potentially misleading attorney advertising and, as a result, the disclaimer requirement does not violate the First Amendment. The opinion contrasted the commercial nature of the lawyer’s blog with other legal blogs noting that the lawyer’s blog is posted at his law firm’s website, in contrast to blogs which are published on a website other than the lawyer’s website and which allow commentary. “Instead, in furtherance of his commercial pursuit, (the lawyer) invites the reader to ‘contact us’ the same way one seeking legal representation would contact the firm through the website.”
A strong dissent by one of the justices stated that the blogs were political speech, that heightened scrutiny should be applied, and that the Virginia Bar Rules could not require the disclaimer under these facts.
Bottom line: In Virginia, at least, it appears that lawyers are permitted name clients and provide information that is “public record” in their public blogs. Other state Bar rules (including Florida) prohibit lawyers from revealing confidential client information, even if it is a matter of public record.
Be careful out there!
Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670