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    Dolores Dorsainvil
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Is Attorney Blogging a First Amendment Issue?

With so many social media platforms, more and more lawyers are finding avenues to use these platforms in their business models.[1] The Virginia courts, in the case of Hunter v. Virginia State Bar,[2] were presented with the constitutional issue of whether it was an attorney’s first amendment right to publish successful case results in a blog post on his law firm’s website, even without the disclaimer required by the Virginia State Bar Rules of Professional Conduct.[3]  The court had to consider whether the attorney’s blog website was commercial speech and whether an attorney can discuss publicly available information related to a client matter without the client’s consent. In his blog titled “This Week in Richmond Criminal Defense,” the majority of Mr. Hunter’s blog posts discussed favorable outcomes[4] received in his clients’ matters, without any disclaimers that puts case results in a context that is not misleading and explains that there are no guarantees and that each case’s outcomes depends on a number of factors. See Virginia State Bar Rule of Professional Conduct 7.1(b).  The Virginia State Bar initiated an investigation and concluded that Mr. Hunter violated the rules pertaining to lawyer advertisement, specifically, Virginia Rules of Professional Conduct 7.1, 7.2,[5] because they deemed that his advertisements were misleading and did not provide the necessary disclaimers. The Virginia State Bar also concluded that as a result of discussing client matters and revealing information that was either embarrassing or detrimental to the client without the client’s consent was a violation of Virginia Rule of Professional Conduct Rule 1.6.[6] In his defense, Mr. Hunter stated that the blog was not a legal advertisement but rather was political speech concerning the judicial system and that it was important to use the real names of his clients so as to provide his audience with an accurate description of what transpired in the legal matter. Mr. Hunter defended against the Virginia Rule of Professional Conduct 1.6 charge and stated that the information that he posted was public information that had already been disseminated.  The Virginia State Bar imposed a public admonition with terms including a requirement that Hunter remove “case specific” content from his blog and post a disclaimer as required under Virginia Rule of Professional Conduct 7.1(b). Hunter appealed to the Circuit Court for the City of Richmond and they affirmed the Third District Committee’s finding that under Virginia Rule of Professional Conduct 7.2(b), Hunter was required to post disclaimers when publishing case results. It, however, reversed the District Committee’s finding that he violated Virginia Rule of Professional Conduct 1.6 by posting embarrassing and detrimental information about his clients without their consent. The Circuit Court held that the application of Virginia Rule of Professional Conduct 1.6 violated Hunter’s First Amendment right to free speech.  The matter then went to the Supreme Court of Virginia and, in a 5-2 decision, the court affirmed the Public Admonition with terms imposed on Hunter for failing to publish the required disclaimers and rejected Hunter’s first amendment argument and held that his blog post was commercial speech. The Court did not make a finding of a violation of Virginia Rule of Professional Conduct 1.6.[7]  After having filed a petition for a writ of certiorari to the U.S. Supreme Court that was ultimately denied, Mr. Hunter entered into a consent order with the bar reinstating the public admonition with terms.

Social media is a great marketing tool that, if used ethically, has many rewarding benefits. Lawyers however, must be mindful of the pitfalls associated with social media that could result in the violation of the ethical Rules. In Maryland, the rules governing lawyer advertising are straight forward. Maryland Rule 7.1 dictates lawyers must only make truthful statements that are not misleading in their advertisements and that these statements cannot create an unjustified expectation about the results that the lawyer can achieve for a prospective client.[8] For example, a statement such as “I’ve won every jury trial I’ve ever had” may be technically true but in order for a prospective client to appreciate a lawyer’s skill-set it would be important to know that the lawyer has only had 3 jury trials. Similarly, it is a violation of Maryland Rule of Professional Conduct 7.5[9] to create a Facebook page where you state your firm name, “Dorsainvil & Associates” if in fact you are a solo practitioner and do not have any associates within your firm.

Although the Hunter case didn’t make a finding of a 1.6 violation, an attorney in Maryland must be mindful that, when making posts to various social media platforms, they may expose confidential or proprietary information in violation of Maryland Rule of Professional Conduct 1.6.[10] This is especially common when a lawyer posts specific information about a recent success in a matter such as a favorable verdict, or when a lawyer shares an anecdote about their challenges either in court, with opposing counsel, or with a difficult client. These types of posts are unauthorized disclosures that violate a lawyer’s duty to keep a client’s matter confidential as required under Rule 1.6 which states that a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, or unless there is an exception to the Rule.

So as you take to these social media platforms, be mindful of the Rules of Professional Conduct as lawyer advertising is deemed commercial speech which the bar can regulate.

[1] Lawyers are using platforms like LinkedIn, Twitter, and Facebook to share information about updates in their law firm.

[2] 285 Va. 485, ___ S.E.2d ___ (2013).

[3] Virginia State Bar Rule of Professional Conduct 7.1(b) states, “[a] communication violates this rule if it advertises specific or cumulative case results, without a disclaimer that (i) puts the case results in a context that is not misleading; (ii) states that case results depend upon a variety of factors unique to each case; and (iii) further states that case results do not guarantee or predict a similar result in any future case undertaken by the lawyer. The disclaimer shall precede the communication of the case results. When the communication is in writing, the disclaimer shall be in bold type face and uppercase letters in a font size that is at least as large as the largest text used to advertise the specific or cumulative case results and in the same color and against the same colored background as the text used to advertise the specific or cumulative case results.”

[4] In these criminal matters, Hunter’s clients were either: 1) found not guilty, 2) had their charges reduced or dismissed, or 3) entered into a plea bargain to an agreed upon disposition.

[5] The amendments effective July 1, 2013, deleted Rule 7.2.

[6] Confidentiality of Information.  Rule 1.6(a) states, “[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, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c).”

[7] In her majority opinion, Justice Cleo E. Powell reasoned that Hunter’s posts all dealt with public information about his cases that had concluded.

[8] Rule 7.1(a) states, “[a] lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it:
(1) Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading; or
(2) is likely to create an unjustified expectation about the results the lawyer can achieve….”

[9] Rule 7.5 Firm Names and Letterheads states, “(a) A lawyer shall not use a firm name, letterhead, or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1.
(b) A law firm with offices in more than one jurisdiction may use the same name or other professional designation in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located.
(c) The name of a lawyer holding a public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm.
(d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.”

[10] Rule 1.6(a) states, “[a] lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).”

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