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Interesting New Virginia Legal Ethics Opinion on Lawyer Blogging, Client Secrets, and Marketing

Earlier this month a three judge panel convened by the Virginia State Bar issued an interesting opinion on the topics of lawyer blogging, client secrets, and free speech.

The panel was convened to hear a disciplinary appeal by Richmond criminal defense lawyer Horace F. Hunter.  Hunter, who practices in the area of criminal defense, is also a prolific blogger about his practice area.  He goes well beyond that however and actually blogs about the developments of his own cases day-to-day. 

No one can deny that his blog is unique and makes an interesting read – you can check it out here. It is precisely those unique and interesting blog entries that were at issue in the VSB disciplinary proceedings. 

To some extent most lawyer bloggers cover their own cases — lawyers love to talk, and their very favorite topic in the world is their cases.  Hunter’s blog is unique however in that it covers information about his own cases – and of course his own clients – that is often only conceptually in the public record. 

What do I mean by that?  In the United States, it is a very important part of our system of laws and indeed our way of life that courts are open to the public.  Indeed, most of our court proceedings – no matter how grisly or disturbing – are wide open to the public.  The very limited exceptions to this general rule are specialty courts like Juvenile and Domestic Relations Courts and certain special proceedings like qui tam complaints, which are filed under seal and are temporarily under seal. 

So, because our courts are generally open to the public, information is “in the public record” when it is spoken out loud in a court of law, even if no one is there to hear it but the judge and the lawyers conducting the argument.  If a reporter from a newspaper is present and overhears what is going on they are free to write about it – in that situation, the information is no doubt literally in the public record.  And of course any person is free to wander down to their local courthouse any given day and sit through as many hours of court proceedings as they like.

It is a fact however that most of us have jobs and other things to occupy our time; and it is a further fact that newspaper reporters and others are only rarely present at criminal proceedings.  So the result is that the vast majority of criminal trial and motion hearings never get read by anyone outside the court system.

And that is where Hunter’s blog comes in.  He is in effect is his own reporter covering his own cases.  It is an interesting concept and an interesting approach to lawyer blogging – not one I would take, but that’s just me.   

Virginia State Bar disciplinary officials said Hunter violated his duty of loyalty to his clients, and a Virginia Disciplinary panel imposed mild discipline for Hunter’s blogging work.  Hunter appealed to a three judge panel, which is the next step in the disciplinary process.      

At issue in the original bar disciplinary proceedings were Rules 1.6, 7.1 and 7.2 of the Virginia State Bar Rules of Professional Conduct.  Rule 1.6 provides in part as follows:

“A lawyer shall not reveal information protected by the attorney-client privilege under applicable law or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client unless the client consents after consultation … “

Rules 7.1 and 7.2 concern truthful lawyer advertising and requires that certain marketing materials be clearly marked as such.

The three-judge panel dismissed the VSB committee finding on Rule 1.6, holding that the interpretation adopted by the Committee would violate Hunter’s First Amendment rights.  It upheld the district committee decision that Hunter’s failure to include a disclaimer warning case results were unique to each situation and could vary widely did violate Rules 7.1 and 7.2, which cover communications about a lawyer’s services and lawyer advertising.  The panel upheld a public admonition for these violations and ordered Hunter to post a disclaimer within 30 days.  Both decisions were unanimous.

Hunter may appeal further.

As some readers may have noticed, I included the sort of disclaimer required by the three judge panel in a recent post about the results of one of my cases.