Skip to content

Virginia Court: First Amendment protection for lawyer-bloggers

Last fall Richmond criminal defense lawyer Horace Hunter was hit with a public reprimand by the Virginia Bar for blogging about his own cases and not including an ‘advertising disclaimer’ on his blog.

As reported by Bob Ambrogi yesterday, the Portsmouth Circuit Court overturned the finding of misconduct as it pertained to blogging about Hunter’s cases.

The panel ruled that a lawyer has a First Amendment right to blog about his own cases, at least with regard to information that is already available on the public record. (Needless to say, you should never blog about privileged client information.)

The court did uphold the Bar’s ruling that an advertising disclaimer was required on Hunter’s blog and that Hunter may not reveal client confidences on his blog.

Legal ethics guru, Attorney Will Hornsby, cautions not to give to much weight to the Hunter outcome as its findings may not apply to all states.

So, the question becomes whether a lawyer may blog, or otherwise communicate information in advertising material, about the representation if that information is otherwise publically known or available. Here’s the problem with coming to that conclusion – the states have different standards governing the lawyer’s obligation to maintain information confidential. Virginia and a minority of states have an ethics rule (usually Rule 1.6) that requires a lawyer to maintain “secrets and confidences.” On the other hand, Rule 1.6 of the ABA Model Rules of Professional Conduct and the majority of states that have adopted it require that a lawyer not reveal “information relating to the representation.”

Seemingly, “information relating to the representation” is far broader than “secrets and confidences” in the marketing arena. If information is public knowledge, it is hardly a secret. However, “information relating to the representation” clearly, in my mind, covers information that is publically available. It is the client’s right that the lawyer not reveal information. Under either version of the rule, the client may provide consent for the lawyer to reveal the information. But, that decision rests with the client, and in the Model Rules states, that decision is designed to extend to information that may otherwise be publically known.

Hunter is the very rare lawyer blogging case that is going to draw an ethics grievance. Hunter not only breached client confidences, but also refused to take a very practical approach of including a lawyer advertising disclaimer in the footer of his blog.

From a practical standpoint, very few lawyers will blog about cases they are working on — whether the information they would blog about is public or not. Many law firms have a policy prohibiting doing so.

And though lawyers often take offense to their blog being labeled advertising by their state supreme court or bar association, it is very easy to comply with any advertising requirements. They’d be no different than those covering a law firm website.

The rare story of a lawyer getting sanctioned for using the Internet for marketing always creates a news sensation. Though First Amendment protection was extended here, my take is Hunter acted far beyond where most lawyers would go and the result was more sensational news.

Bottom line for lawyers blogging, be smart. That’s exactly the position being shared by lawyers speaking on the subject here today at the Texas Bar Association Convention.