POSTED BY Caroline Carollo
Earlier this year, the Virginia Supreme Court decided a case that sheds some light on the issue of how advertising rules for lawyers should apply to social media and other forms of electronic communications. In Hunter v. Virginia State Bar, attorney Horace Hunter authored a non-interactive blog which was accessible from his law firm’s website. The blog contained posts discussing various legal issues and cases, but the majority of the posts discussed cases in which Hunter had obtained favorable results for his clients. There were no disclaimers on any of his posts or on his firm’s website.
In March 2011, the Virginia State Bar (VSB) investigated Hunter’s blog and found that it constituted advertising under the Virginia Rules of Professional Conduct. The VSB charged Hunter with violating Rules 7.1 and 7.2 because his blog posts discussing his criminal cases lacked disclaimers and were inherently misleading. The VSB also charged Hunter with violating Rule 1.6, finding that he revealed potentially embarrassing or detrimental information regarding his former clients without their consent. Hunter argued that his blog was primarily political speech rather than commercial speech, and should therefore not be subject to advertising regulations.
The Virginia Supreme Court found that Hunter’s blog posts did not violate client confidentiality under Rule 1.6, but found that the blog posts were a form of commercial speech rather than political speech. This distinction is significant because while restrictions on political speech are subject to a higher standard of strict scrutiny, restrictions on commercial speech are subject to a lower standard of intermediate scrutiny. The Court further found that Hunter’s blog posts were advertisements, because they primarily described cases where he had received a favorable outcome for his client, and that they were potentially misleading. As a result, the Court held that the VSB could require Hunter to post a disclaimer on all case-related blog posts.
On the other hand, the dissenting justices found that Hunter’s blog posts were political speech rather than commercial speech. They convincingly argued that speech concerning the criminal justice system has always been considered political speech, and further stressed that Hunter mentioned the outcome of his cases to illustrate his views of the criminal justice system. Hunter’s blog posts discussed, in detail, the proceedings of public criminal prosecutions, and Hunter referenced the outcomes of his cases in order to show his values as a criminal defense attorney regarding those proceedings. Consequently, I am not completely convinced that Hunter’s blog posts constitute commercial speech, as his focus on the criminal justice system more closely resembles political speech.
In regards to the client confidentiality charge, I believe the Court was correct in finding that there was no violation. All the information that Hunter wrote in his blog posts had been openly revealed in public judicial proceedings and concerned cases that had been concluded. However, one could argue that lawyers should still have a duty of loyalty to keep client information confidential, even if that information is public knowledge. Creating a public knowledge or public records exception to client confidentiality allows lawyers to discuss embarrassing or damaging information about former clients as long as the confidential information is in the public records. While blogging can be an important part of an attorney’s marketing plan, it is important for attorneys to abide by their ethical obligations.
