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SAN ANTONIO--In the landmark case of Bates v. Arizona State Bar, 433 U.S. 350 (1977), the U.S. Supreme Court recognized that the First Amendment protects the right of lawyers to advertise their services, subject to state regulation of commercial speech.
But state bar regulators who drafted post-Bates rules did not envision the “second generation advertising issues” that would arise when they attempted to apply those rules to lawyer websites, blogs, LinkedIn endorsements, AVVO listings, and other internet-based client development tools, according to Dean Margaret Raymond of the University of Wisconsin Law School.
Raymond moderated a May 31 panel discussion, “Recent Issues Regarding Lawyer Advertising Rules,” at the 39th ABA National Conference on Professional Responsibility, which took place May 30-31 in San Antonio.
Panelist Alice Neece Mine, assistant executive director of the North Carolina State Bar, said the attitude of her bar's ethics committee has evolved over the last decade as its members have examined and become more comfortable with lawyers' use of new technologies.
Mine provided a snapshot of issues at the intersection of lawyer ethics and advertising at the beginning of the 21st century, including lawyers' use of Groupon and similar daily-deal websites, “hard” and “soft” client testimonials, endorsements on professional networking sites such as LinkedIn, and opportunities for live chat and advertising favorable results obtained for clients on lawyer websites.
Most of the discussion centered on the Virginia Supreme Court's recent ruling in Hunter v. Virginia State Bar, 2013 BL 55026, 29 Law. Man. Prof. Conduct 161(Va. Feb. 28, 2013), in which the court recognized First Amendment protection for a lawyer's blog postings while upholding the bar's authority to discipline the lawyer for not including a disclaimer about case results.
Two of the principals in that litigation were on the panel: Rodney A. Smolla, who represents the disciplined lawyer, Horace Hunter of Hunter & Lipton in Richmond, Va., and James M. McCauley, the Virginia State Bar's ethics counsel.
The decision “serves as a fascinating window into the basket of issues we're talking about,” said Smolla, who is also president of Furman University in Greenville, S.C.
The case centered on Hunter's remarks in the blog on his criminal defense firm's website, “This Week In Richmond Criminal Defense.” Hunter's posts address legal matters, primarily narratives of public details of his clients' cases and descriptions of favorable results he obtained for them, although he also uses the blog to criticize the criminal justice system.
The Virginia State Bar took the position that Hunter's blog violated the state's lawyer conduct rules in two ways, Smolla said.
First, the bar charged Hunter with violating Virginia Rule of Professional Conduct 1.6 by failing to obtain his clients' permission before describing their cases on his blog. Second, the bar contended that Hunter's blog entries constituted advertising and, under Virginia Rule 7.2, required a disclaimer that all cases are different and that past results are not indicative of future outcomes.
Hunter declined to comply with the disclaimer request and claimed that the bar lacked authority to regulate his blog because it was political speech and not advertising. The bar filed a complaint and the matter proceeded through multiple levels before ending up in the state's top court.
The Virginia Supreme Court held that Hunter must include a disclaimer about case results on his blog as required by Rule 7.2, but it said application of Rule 1.6 to Hunter's blog was unconstitutional.
Smolla said that he has asked the U.S. Supreme Court to review the decision as to Rule 7.2. McCauley said it is unclear at this point whether Virginia's attorney general intends to file a cross-petition on the Rule 1.6 issue.
Smolla told the audience that “My client has always been absolutely honest in describing his motivation” in writing his blog: a mixture of political and commercial reasons.
Hunter acknowledges “'Yes, I was marketing myself, promoting myself, and one of my motives was commercial: to attract clients,’” he said. But, Smolla added, Hunter maintained “'I was also expressing my identity, letting people know what I think about issues, expressing my politics, [and disseminating] news about the system and criminal defense.’”
Hunter fought the disciplinary charges, Smolla said, because he felt “'it would cheapen my message to put on my blogs that this is advertising.’”
Smolla said he “argued unsuccessfully that Hunter's commercial motivation, which was one of multiple motivations, could not, in and of itself, turn what was otherwise political speech into commercial speech, so this had to be treated as political speech and the bar could not force Hunter to put an advertising disclaimer on it against his will.”
The U.S. Supreme Court has not yet decided whether speech of a business entity, or of a professional with commercial interests, that is facially political can be treated as advertising--and therefore subject to less protection under the First Amendment--whenever one of the speaker's motives happens to be commercial, Smolla stated.
McCauley said he was “surprised” at the Virginia Supreme Court's holding on Rule 1.6. He pointed out that one of Hunter's posts named a client charged with possession of cocaine and stated, accurately, that she had tested positive for the substance, and that another post named a schoolteacher who had been charged with assaulting another teacher.
“What about the part of Rule 1.6 about not disclosing information that's detrimental or embarrassing to the client?” McCauley asked.
Unlike Rule 1.6 of the ABA Model Rules of Professional Conduct, Virginia's Rule 1.6 retains the “confidences and secrets” concept of the ABA Model Code of Professional Responsibility and, with certain exceptions, prohibits a lawyer from revealing “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.”
McCauley observed that although all of the client information Hunter posted had previously been revealed publicly in court proceedings, but for his blog postings it would not have been readily available to, for example, potential future employers of those clients who might use internet search engines to screen applicants.
Whether information is in the public record, McCauley said, is not always clear.
“Often transcripts [of public court hearings] are not made if they're not needed or not filed with the court, so once the case is over, that information evaporates,” he said. “This is clearly not information that is 'generally known’ for purposes of Rule 1.9(c),” which governs a lawyer's duties to former clients, McCauley stated.
The speakers and audience members who joined the discussion came to no clear conclusion as to whether the Hunter decision would permit a lawyer to notify a former client's employer of negative, but previously publicly disclosed, information, or whether a contrary result would forbid an appellate lawyer from citing and discussing a publicly reported case the lawyer had handled for a previous client that was favorable authority for a current client.
The bar representatives on the panel commented that grievances related to lawyers' marketing efforts are--so far, at least--usually not related to internet-based activities.
“We are not seeing grievances related to this brave new world,” Mine remarked. Instead, she said, most bar complaints about advertising in North Carolina continue to relate to failures to include direct mail disclaimers and result in letters of warning or, occasionally, reprimands.
In Virginia, “Nearly all the complaints we receive [regarding lawyer advertising] are complaints from the economic competitors of the lawyer they're complaining about,” not from clients or nonlawyer members of the public, McCauley reported.
“We seem to think that we fix a lot of problems with disclaimers,” Raymond observed to the panel. “Convinced?”
“We don't have any empirical evidence,” McCauley acknowledged. “We've been challenged by our opponents to produce evidence that the consumer is misled by a statement without the accompanying disclosure. Our bar's response is that if we can establish that the statement is inherently misleading, we win.”
Copyright 2013, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
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