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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).”

Ethics & Social Media

The legal profession is usually the last profession to adapt to new models with regard to business development. However, with the advent of the internet and the far-reaching effects of various social media platforms, more and more lawyers are finding innovative avenues to use these platforms in their business models.

Social media is a great marketing tool that has many benefits. What’s not to love? It is an inexpensive way to provide exposure, to give lawyers name recognition, and most importantly, it generates clients. For example, lawyers are creating attorney blogs to share relevant information about their practice and recent developments in the law. Lawyers are also using platforms like LinkedIn, Twitter, and Facebook to share information about updates in their law firm. These updates include firm announcements, speaking engagements, sponsorships, successes, or any upcoming legal or community service events.  Social media can provide another form of easy access for a lawyer to communicate with other lawyers in similar professional circles, with clients, as well as with friends and family. Additionally, social media is also an easy way to perform basic due diligence and legal research when a lawyer desires additional information about an opposing party, a potential witness, opposing counsel, or any other third parties.

BusinesswomanLawyers however, must be mindful of the pitfalls associated with social media that could result in the violation of the ethical Rules. An attorney, when making a post to a social media platform may expose confidential or proprietary information. This is especially common when a lawyer posts 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 type of posts are unauthorized disclosures and violate a lawyer’s duty to keep a client’s matter confidential as stated in 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.

Lawyers also must adhere to their jurisdiction’s ethical Rules that deal with lawyer advertising. Lawyers must only make truthful statements that are not misleading in their advertisements and these statements cannot create an unjustified expectation about the results that the lawyer can achieve for a prospective client. See Rule 7.1. 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 the Rules to create a Facebook page where you state your firm name, i.e. “Smith & Associates” if in fact you are a solo practitioner and do not have any associates within your firm. Lastly, a lawyer should be aware that although social media makes transmission of information effortless and easier, lawyers are still prohibited from soliciting prospective clients through real-time electronic contact. See Rule 7.2.

In conclusion, social media is clearly more than just a fad. However, lawyers must exercise careful judgment when using these tools and should be aware of the issues that may arise from its use. With that said, a careful review of the ethical Rules is critical to a lawyer’s understanding of how to effectively and properly use social media platforms.

Tips on How to Deal with a Bar Counsel Complaint

Responding to dreaded lettersFor many attorneys, coming across an envelope with the return address marked “Attorney Grievance Commission ” undoubtedly brings a sinking feeling. After reading the bar complaint, an attorney’s initial reaction may be one of many: anxiety, incredulousness, fear, or even anger. Some attorneys may even view the correspondence from Bar Counsel’s office as a personal attack on their credibility and professionalism as a lawyer.  Whatever the feeling, and however the bar complaint arose,[1] with the hundreds of bar counsel complaints that are lodged every year,[2] attorneys should appreciate and understand not only the serious nature of attorney discipline investigations, but that the process can be managed.

Here are several simple tips that will guide you in responding to an inquiry from Bar Counsel should one ever become subject to a complaint:

1)      Think. Before penning an emotional response to Bar Counsel, take the time to think about the legal matter, the history of the case, and the client that filed the complaint.  Taking this time will aid an attorney in focusing on the issues involved in the complaint and may give that attorney time to give a response based on the facts rather than emotions.  An attorney may even want to take the time to review the file in its entirety to make sure that they are able to recall every detail about the underlying legal matter.

2)      Be timely. Request an extension if needed.  In its cover letter accompanying the bar complaint, Bar Counsel provides a date by which an attorney is required to respond. If for some reason, an attorney is not able to submit a timely response, that attorney may wish to request an extension of time to respond. Bar Counsel will usually grant an initial reasonable request for an extension. The attorney should confirm such a courtesy with a written correspondence. If a circumstance exists that requires a lengthy response period, because as we all know – life happens, i.e. illnesses, deaths, vacations, business or personal matters, it is prudent for an attorney to explain that in writing to Bar Counsel, and provide corroborating documents explaining the lengthy extension request.

3)      Respond. This may seem like an obvious step but there are attorneys that, even when they have not committed misconduct, stick their head in the sand in an effort to avoid dealing with the allegations made in a complaint altogether. The important fact to note is that failing to respond to a lawful inquiry from Bar Counsel is a violation of Rule 8.1 (b).[3] So, even if Bar Counsel is not able to make any findings of a violation of the Maryland Lawyers Rules of Professional Conduct (“the Rules”) in the initial bar complaint, Bar Counsel may pursue and prosecute an attorney for violating Rule 8.1(b).  No matter how distasteful the prospect of being subject to a bar complaint is, every attorney has an affirmative duty under the Rules to respond to requests for information from bar counsel authorities.

4)      Answer the allegations honestly and concisely. An attorney should provide a comprehensive and fair explanation of the facts and circumstances surrounding the allegations made in the complaint. Providing a full picture or history of the representation will assist Bar Counsel render a disposition; however, an attorney should be judicious.  Do not do “lawyer speak.” Providing a thirty (30) page response to a complaint and failing to actually address the allegations of misconduct made in the initial complaint may raise concern.

5)      An attorney should provide the documents Bar Counsel requests but should also provide relevant documents as exhibits if they corroborate an attorney’s version of events. For example, supplying Bar Counsel with a copy of a key pleading of an issue that has already been addressed by a tribunal is helpful. Taking this pro-active step saves time in the investigation process.

6)      Be diligent and comprehensive. An attorney should take the time to explain relevant areas of law as it relates to the underlying legal matter. It is important for an attorney to not assume that Bar Counsel is familiar with every practice area. Providing Bar Counsel with a copy of the applicable rule or statute that the attorney has relied on in the underlying matter is invaluable and can assist Bar Counsel in determining the validity of the bar counsel complaint.

7)      Hire counsel, if necessary.  This is a determination that can only be made by an attorney but there are benefits to hiring representation. Respondent’s counsels are usually more familiar with the attorney disciplinary process and can help navigate the system.

8)      Resolution. If the attorney can and wishes to resolve the issue with his/her client, they are welcome to while the disciplinary matter continues.  Sometimes the issue occurs as a result of a misunderstanding, or sometimes the client wants their client file returned or requests a refund. Bar Counsel will not resolve fee disputes but usually will refer the parties to a voluntary fee dispute committee for further review.

An attorney’s cooperation to a Bar Counsel investigation will contribute to a resolution of the matter in a manner which safeguards the rights of the public and protects attorneys from unfounded complaints.


[1] Bar Counsel has many sources for bar complaints. While the majority of them come from clients, Bar Counsel also receives complaints from the courts, opposing counsel, family members, employees, neighbors, and acquaintances of lawyers. Additionally, it is also common for bar counsel authorities to initiate investigations when Bar Counsel learns information either through the media or through litigation records that would support a finding that an attorney has violated the ethical rules.

[2] The 36th Annual Report of the Attorney Grievance Commission (July 1, 2010 through June 30, 2011) states that that 1,880 bar counsel complaints were filed.

[3] An applicant for admission or reinstatement to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:  [f]ail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by Rule 1.6.

What is Good Communication?

One of the most common grievances that clients lodge against attorneys is an attorney’s failure to adequately communicate with them.  While the Maryland Lawyers’ Rules of Professional Conduct[1] does not define the term “adequate communication,” attorneys should take the time to determine what that term means for their practice as communication is the key to establishing and maintaining a good attorney-client relationship. As such, it is a good idea to implement an office practice that is communicated to the client early in the representation. For example, it is a good office practice to inform a new client that telephone calls are returned within a certain time period (e.g, a 24 hour period, or 1-2 business days).  Another good office practice that some attorneys implement is to send their clients a carbon copy of all pleadings and correspondence in the client’s matter as way to keep them informed of the status of a litigation.

In our technology driven world, many attorneys communicate with clients in a multitude of ways: telephone calls, letters, e-mail, instant messaging, Skype and the like.  However, the most effective and recommended way to communicate with a client is by way of a carefully drafted letter.  It is perhaps the best method to convey important information to the client with regard to their legal matter, especially if it requires the client to make a decision about a recommended course of action.  This is because communications made by telephone or e-mail can sometimes be made with haste and may be later forgotten or misconstrued by the client. However, creating a well written letter (copied to the file) that requires the attorney to reflect on the legal advice or information given to the client, not only benefits the client, but also, serves as a level of protection for the attorney as well in the event that a disagreement about the information conveyed or misunderstanding between the parties should occur. Written communications should be made to the client throughout the course of the representation. The representation should start with the initial engagement letter/fee agreement that sets forth the scope of the representation and the rate or basis of the fee.  If there are important developments in a client’s matter (settlement offer, upcoming court date, expert witness fees needed) or some other important information that the attorney needs to share with the client (change in office address or contact information, attorney on extended vacation, attorney closing their practice), it should always be in writing. The representation should also end with a termination/closing letter notifying the client that the matter is either resolved or that the attorney is terminating the relationship.

An attorney that takes the time to develop a good office procedure with regard to how he or she communicates with their clients will not only make for a more efficient practice but will also ensure that the attorney does not run afoul of the Rules of Professional Conduct.

The Lawyers’ Rules of Professional Conduct are now available via new mobile apps  for the iPhone, iPad, Android and Blackberry, a project of the Young Lawyers’ Section.


[1] Maryland Lawyers’ Rules of Professional Conduct  Rule 1.4 (Communication) states:

(a)  A lawyer shall:

(1)  promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(f), is required by these Rules;

(2)  keep the client reasonably informed about the status of the matter;

(3)  promptly comply with reasonable requests for information; and

(4)  consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Maryland Lawyers’ Rules of Professional Conduct or other law.

(b)  A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

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