May 30, 2013 Top Story

Attorney Blogger Runs Afoul of Ethics Rules on Advertising

Virginia high court finds blog is not protected political speech

Renee Choy Ohlendorf

A divided Virginia Supreme Court upheld the imposition of discipline against an attorney for authoring an Internet blog discussing the results of his client’s case without a disclaimer that case outcomes were not guaranteed. The majority ruled that a partial economic motivation for writing the blog was sufficient to categorize it as commercial speech subject to regulation rather than protected political speech under the First Amendment.

Disciplinary Proceedings

In Hunter v. Virginia State Bar [PDF], a criminal defense lawyer authored and maintained a blog on his firm’s website that mainly discussed concluded cases in which he obtained favorable results. All published information was part of the public record. Other blog posts consisted of the attorney’s critique of the criminal justice system. The blog did not provide any disclaimer that the cases mentioned did not guarantee or predict outcomes in future cases.

After investigating whether the blog violated ethical rules, the Virginia State Bar (VSB) determined that the attorney’s posts constituted misleading attorney advertising of cumulative case results without the required disclaimer, violating Virginia Rule of Professional Conduct 7.1 and 7.2, which govern attorney advertising. The VSB further found Hunter in violation of Virginia Rule of Professional Conduct 1.6, pertaining to disclosure of client information, on the ground that he improperly disseminated client confidences by disclosing information that would be embarrassing or likely detrimental to the client, without client consent.

A panel of the Virginia Circuit Court affirmed the VSB ruling finding no violation of the attorney advertising rules, and that application of those rules to the blog was in accord with the First Amendment. The circuit court found the VSB’s ruling on improper disclosure of client confidences violated the First Amendment, however, and reversed on that ground. The panel ordered Hunter to post a disclaimer on his blog and issued a public admonition.

Supreme Court Rules That Blog Is Unprotected Commercial Speech

On appeal, the majority of the Virginia Supreme Court held that Rules 7.1 and 7.2 were constitutional as applied to the attorney’s blog, but that Rule 1.6 was not. Though the blog contained political commentary intertwined with the discussion of his cases, the majority concluded the blog constituted attorney advertising and, therefore, commercial speech.

The court classified the blog as commercial speech based upon the following factors: (1) the attorney’s motivation for the blog was partly economic; (2) most of the posts pertained to the attorney’s favorable case results, and thus advertised his lawyering skills; (3) the blog was maintained on his law firm’s website rather than an independent site; and (4) the blog was non-interactive and did not allow for public discourse. The court next analyzed whether the blog fell under the ambit of the First Amendment, which does not protect misleading speech. Though not inherently misleading, the majority found the blog posts had the potential to mislead unsophisticated persons into believing they were guaranteed to obtain the same favorable results from the attorney.

In contrast, the two dissenting justices would have ruled that the blog constituted political speech beyond the reach of VSB regulation. Though the attorney mostly discussed his own cases, the dissent pointed out that he “uses the outcome of his cases to illustrate his view of the system,” and that his motive was not purely economic. The dissent also disagreed that the location of the blog on the firm’s website and its lack of interactivity converted the blog into commercial speech, because those factors had no bearing on the content of the blog or the motivations of its author. Under heightened scrutiny, the dissent would have declined to find a violation or to impose a disclaimer because the attorney advertising rules operate to protect the public from misleading statements about attorney services, and there was no evidence that anyone was misled by the attorney’s blog.     

What Types of Attorney Speech Are Covered?

“If mixed speech is declared to be commercial in nature because it is predominantly commercial, then it is really difficult for an attorney to determine when his website crosses the line into commercial speech,” observes Stephen T. LaBriola, Atlanta, cochair of the Attorney Advertising Subcommittee of the ABA Section of Litigation’s Ethics and Professionalism Committee “The court does not set forth a test to determine whether the speech is political or commercial,” he states.

“I don’t find an easy distinction between political and commercial speech when it comes to lawyers talking about cases, and that’s what this decision does,” agrees Ashley I. Kissinger, Denver, past cochair of the Section of Litigation’s First Amendment and Media Litigation Committee. “Lawyers do lots of writing about their cases, and that’s helpful for the public to know. We’re able to provide the public with a unique insight into those judicial proceedings that others cannot,” she explains.

Section leaders are also concerned that the Hunter decision may extend beyond blogs to other types of attorney writing. “It also brings a whole lot more attorney speech within its ambit than just a blog, if strictly read,” says Kissinger. “Every silk stocking firm in Virginia is going to have attorney biographies that may run afoul of this listing,” notes LaBriola. “The question is, will it have a chilling effect or will the disclaimer actually be used,” he adds.

Advice for Attorney Bloggers

“Lawyers need to read the legal advertising rule in the jurisdiction where they’re licensed,” advises Kissinger. She suggests attorney bloggers should add disclaimers if required by their state. “An attorney would be wise to make contact with his former client and ask for permission to post about the case on the front end,” adds LaBriola. He counsels lawyers to “err on the side of caution.”

Renee Choy Ohlendorf is an associate editor Litigation News.

Keywords: ethics, blog, attorney advertising, First Amendment

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