Virginia State Bar’s crackdown on lawyer’s blog raises questions

October 9, 2011

Virginia lawyers who blog about their cases, beware: the state bar may come after you for inappropriate advertising.

At least that’s the message the Virginia State Bar seems to be sending in a case against Richmond criminal defense attorney Horace Hunter. The bar has brought a misconduct charge against Hunter, who blogs on his firm’s Web site about cases he’s worked on, as well as national and local criminal justice issues. Bar authorities contend the blog constitutes advertisement and should include a disclaimer saying it’s an ad. Hunter argues the blog is news and commentary, and the bar’s attempt to get him to tack on a disclaimer is a violation of his First Amendment rights.

One purpose of the Web site is to market the firm and attract business, so any discussion of Hunter’s cases is considered advertising and must include a disclaimer “that puts the case results in a context that is not misleading,” the charge said.

Hunter’s case, which is scheduled for a hearing Oct. 18, appears to be the first time the Virginia State Bar has lodged a formal charge against an attorney over blogging and whether it violates advertising rules. State bar counsel Edward Davis would neither confirm nor deny the existence of previous charges against lawyers over blogs and advertising, but there is no record of disciplinary action against Virginia attorneys regarding the matter, according to the bar’s archives of disciplinary actions dating back to 1999. The bar can suspend or disbar attorneys found in violation of legal ethics.

Davis declined to comment on the pending case.

Hunter’s case has some lawyers — for whom blogging has become commonplace — as well as free speech and social media law experts questioning whether the bar is overreaching in its regulation of online speech in the social media age.

State bars prohibit misleading advertising, requiring lawyers when listing previous wins to include disclaimers saying every case is different and that prior results don’t guarantee future success, said Rodney Smolla, a leading First Amendment scholar and president of Furman University in South Carolina. But Smolla, a former dean at Washington and Lee University School of Law who filed a brief before the state bar on Hunter’s behalf, said Hunter’s blog resembles journalism more than advertising.

“I don’t think the mere fact that a lawyer has been involved in a case means everything a lawyer says about it is an advertisement for future clients,” he said. “Lawyers talk about their own cases all the time, in public settings, publications … and members of the public are able to take that speech for what it’s worth.”

Social media rules

The bar’s position in Hunter’s case conflicts with the general movement in legal advertising that encourages the use of social media without placing undue burdens on lawyers, said Brad Shear, a Bethesda attorney who specializes in social media law.

The American Bar Association’s Commission on Ethics recently said no new restrictions were necessary to regulate lawyers’ use of technology and client development, and that prohibiting Internet and other electronic advertising would “impede the flow of information about legal services to many sectors of the public. (See the commission’s June recommendations here).

“If the Virginia Bar believes that blogs that discuss news and commentary should have stringent disclaimers that precede the content because they are deemed to be advertisements, then the Virginia Bar may have to require that every blog post, blog comments on other blogs and other user-generated content by an attorney to contain a strict disclaimer,” said Shear, who has no ties to the Hunter case. “It becomes a slippery slope.”

The Virginia State Bar is limited to regulating practices and disciplining lawyers in Virginia, but Smolla said its decision could set precedent in any jurisdiction.

“I don’t know if other bar authorities would or wouldn’t feel they’d want to prosecute these things, but it’d be a warning sign that this kind of activity could draw some sort of disciplinary action,” he said. “It could exert a chilling effect on all lawyers that blog on litigation results, particularly if those results are involving matters on which they’ve worked as a lawyer.”

Bob O’Neil, founder and former director of the Thomas Jefferson Center for the Protection of Free Expression and former president of the University of Virginia, said Hunter’s blog is not misleading, and called the bar’s standard on disclaimers “excessive.”

“That strikes me as overkill,” said O’Neil, who is not involved in the case. “Pretty innocent stuff like Hunter’s [blog], I don’t think that’s regulable.”

The charge, filed in March, also says Hunter blogged about information that would be “embarrassing” or “detrimental” to his clients, including using a pseduonym to discuss the case of a juvenile client. Hunter failed to show that he had obtained his clients’ consent to talk about the cases, the charge said. Hunter calls the claims “frivolous” and maintains that the matters discussed on his blog are public, and that he had the permission of the juvenile’s parents to talk about the case.

Catherine Ho covers law and lobbying for Capital Business, which she joined in 2011. She was previously a reporter at the Daily Journal in Los Angeles, covering LA civil courts and labor and employment law.
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