Six weeks ago the Virginia Supreme Court issued a very interesting, and in my opinion controversial, decision regarding lawyer advertising. It seems that one Horace Frazier Hunter, who practices criminal defense law in Richmond, authors a trademarked blog called This Week in Richmond Criminal Defense. The blog consists almost entirely of summaries of criminal cases won by Mr. Hunter -- though it also is sprinkled with occasional legal commentary. The summaries contained the real names of Hunter's clients and the crimes they were alleged to have committed.
As a result of Hunter's blog posts, the Virginia State Bar launched an investigation. One of Hunter's former clients complained to the Virginia State Bar that Hunter's publication of his criminal trial was embarrassing or detrimental to him, even though the trial was public, because few knew about the trial while the entire world could read Hunter's blog. [The Virginia Rules of Professional Responsibility, like rules in most states, prohibit the release of "information gained in the professional relationship ... the disclosure of which would be embarrassing or would likely be detrimental to the client unless the client consents after consultation...."]
The State Bar investigated and agreed with the complainant. In addition, the Bar found that the blog was essentially commercial advertising, and was in violation of state rules requiring appropriate disclaimers ["Advertising;" "Your results may vary"; "Each case is unique and these outcomes are not representative;" etc.]. Hunter was admonished by the state bar for violating ethics rules, and appealed its decision. Eventually the case reached Virginia's high court.
The court made two interesting rulings.
1. A 5-2 majority held that Hunter's blog was indeed commercial speech that could constitutionally be regulated by the State Bar to the extent of requiring appropriate disclaimers. [The two dissenters held that the First Amendment prohibits the requirement of disclaimers.] The majority notably rejected Hunter's claim that all legal speech is political speech, while the dissent essentially agreed that information about the criminal justice system inevitably had political implications.
2. A unanimous court held that applying Virginia's confidentiality rules violated Hunter's First Amendment rights, since the trials were over and all information released in the blog was public. The unanimous court rejected the State Bar's assertion that, though journalists could have written about the case, lawyers are restricted from massively publicizing embarrassing information about their clients if that information is technically public but little known.
Hunter has vowed to appeal the disclaimer holding to the United States Supreme Court. I hope the Bar will cross-appeal the confidentiality holding. I had always thought that being someone's lawyer imposed duties toward that client that were greater than those incumbent on a beat reporter.....