Disclaim and Disclose: Navigating the “Blawgosphere” without Violating the Rules of Ethics
People routinely use the Internet for various functions. Whether personal, professional, or political, web use undoubtedly plays a prominent role in the everyday lives of many Americans. As is often the case, however, with popularity often comes problems. Turn on the news, click on a news website, or tap the news app on your smartphone, and you likely will find a story involving the use – or misuse – of technology and social media.
In March of 2011, Virginia attorney Horace Hunter found himself in the midst of such a story. Following an investigation, the Virginia State Bar (VSB) filed charges against Hunter because they found his blog, “This Week in Richmond Criminal Defense,” violated the Rules of Professional Conduct regarding attorney advertising and attorney-client privilege.
Although Hunter touted his blog as his personal commentary on the legal system, the VSB found the blog to be advertisements of Hunter’s successes. Focusing largely on the lack of disclaimer and that most blog entries discussed cases in which Hunter had emerged victoriously, the Bar determined the postings were misleading and likely to create unreasonable expectations about the author’s legal skills, thereby violating Rules 7.1 and 7.2.
Further, because Hunter discussed actual cases on which he had worked, the VSB determined his blog violated privilege. In violation of Rule 1.6, the Bar charged Hunter with “revealing information that could embarrass or likely be detrimental to former clients . . . without their consent.” After the October 2011 hearing, the Bar imposed sanctions on Hunter, publicly admonishing him and requiring that “he remove the case-specific content for which he has not received consent and post” an appropriate disclaimer on any posts related to specific cases.
Hunter’s technological troubles, however, did not end with the State Bar. He appealed to a three-judge panel at the Circuit Court, before finally going before the Virginia Supreme Court. Ultimately, the state’s highest court agreed with the VSB, determining that Hunter’s blog was commercial speech in the form of a potentially misleading advertisement. (The Virginia Supreme Court overruled both the State Bar and Circuit Court’s rulings that Hunter violated attorney-client privilege, stating that because the information had already been made public through the court system, to prohibit the discussion of such information violates the First Amendment.) Defending its ruling on the grounds of protecting the public from misinformation, the court allowed the imposition of a disclaimer, provided that disclaimer comply with the state’s Rule 7.2.
During the Bar hearing and subsequent appeals, Hunter defended his blog as simply his own commentary in which he used specific cases to illustrate his points and opinions on various legal issues. He claimed his motivation was not only marketing, but also demonstrating his commitment to criminal law and to combat the common public opinion that defendants are guilty until proven innocent. Certainly, these notions relate to his work as a criminal defense attorney, but according to Hunter, his writing is meant to promote ideas, not simply to further his business.
Interestingly, the Dissent accepted his defense, agreeing that his articles were not advertisements for Hunter’s legal services but free speech protected by the First Amendment; any commercial content was intertwined with his political commentary on the law and the legal system. Hunter simply happens to be a real life lawyer with real life cases from which he can pull to demonstrate his personal views.
And that defense seems rather reasonable. The Virginia Supreme Court cited the fact that the blog was accessible only through the firm’s website as one factor in determining it was an advertisement. But countless firms, particularly larger ones, have sections of their websites devoted to their attorneys’ legal writing and commentary. Some firms label these writings as blogs, while others call them articles. But no matter the title, the idea remains the same: real life lawyers are commenting on real life legal issues, and these commentaries are at least in some way connected to real life law firms.
Blogging and Internet commentary pervade the legal writing community. The ABA Journal has an entire section of its website devoted to these “blawgs.” If something is a relevant legal issue, chances are someone is blogging about it. But what does the Hunter decision mean for the rest of the blawging community? Certainly, no clear answers will exist unless and until the United States Supreme Court addresses the issue.
Not surprisingly, the website of Horace Hunter’s firm states that an appearance at the Court is the likely next step. Until that happens, legal bloggers should take caution. The safest course of action would be to ensure that a blog is decidedly commentary, not meant to flaunt one’s legal prowess or misrepresent her rate of success. When in doubt, include a clear, unequivocal disclaimer. Because technology and social media move more quickly at times than the Rules of Ethics, a lawyer’s best bet is to do more than seems necessary. After all, no one wants to face sanctions simply for stating an opinion.