Lawyers who blog about their cases to boost their practice do not need to get their clients' consent to discuss public information in completed matters, but these posts aren't exempt from restrictions on lawyer advertising, including the need for a disclaimer about past results, according to the first appellate decision addressing application of the First Amendment to lawyer weblogs.
In a widely watched disciplinary case, the Virginia Supreme Court Feb. 28 held that a criminal defense lawyer's posts on his firm's website about the results he has obtained for clients are “potentially misleading commercial speech” that must be accompanied by a disclaimer required under Virginia lawyer advertising rules (Hunter v. Virginia State Bar, Va., No. 121472, 2/28/13, aff'g in part, rev'g in part 28 Law. Man. Prof. Conduct 481).
The majority concluded that, viewed as a whole, the lawyer's blog posts constitute an advertisement for his practice even though they include some commentary on the criminal justice system.
Two justices disagreed, contending that the posts are political speech that is protected by the First Amendment from the burden of a state-mandated disclaimer, even if the lawyer had a commercial motivation for the blog.
Notably, however, the court also held that the blogger, Richmond, Va., attorney Horace F. Hunter, does not have to obtain his clients' consent to blog about public information relating to cases that are no longer pending, even if the clients will be embarrassed or suffer a detriment if the details are made available on the internet. Lawyers are no more prohibited than other citizens from reporting what happens in court, Justice Cleo E. Powell declared in her opinion for the court.
“It's a 50-50 decision,” said First Amendment expert Rodney A. Smolla. He represents Hunter in the case and told BNA that they plan to petition the U.S. Supreme Court for review.
“Obviously we believe the dissenting opinion on the commercial speech issue is the most persuasive view,” Smolla said. He is president of Furman University in Greenville, S.C.
Smolla said that in the last decade the U.S. Supreme Court has been “relatively robust” in its protection of commercial speech and political speech, but that whether those decisions apply with full force to the legal profession is unresolved. “I hope the Supreme Court sees it will be useful to the bar” to grant review and clarify the application of First Amendment protections, he said.
According to James M. McCauley, ethics counsel for the Virginia State Bar, the court's holding demonstrates that “lawyer advertising on blogs is not different from lawyer advertising anywhere else.”
Lawyers who communicate with the public through a blog should read the court's discussion of how blogs may be regulated under a commercial speech standard as opposed to a strict scrutiny standard, he told BNA.
The court agreed with a three-judge disciplinary panel that Hunter violated two Virginia Rules of Professional Conduct by omitting an advertising disclaimer from summaries of his cases he posted on his blog, This Week in Richmond Criminal Defense.
Rule 7.1(a)(4) forbids communications by lawyers that are “likely to create an unjustified expectation about results the lawyer can achieve,” and Rule 7.2(a)(3) forbids advertisements that advertise specific or cumulative case results unless they include a disclaimer that meets certain content, placement, and format requirements.
The Virginia State Bar contended that Hunter's blog posts were inherently misleading without the required disclaimer, while Hunter and Smolla maintained that the blog is political speech that may not be burdened with a disclaimer requirement.
The court concluded that “Hunter's blog posts, while containing some political commentary, are commercial speech.” In reaching these conclusions, it pointed out that:
• Hunter's motivation for the blog was admittedly at least part economic.
• The posts predominantly described cases in which he received a favorable result for his client.
• The posts referenced a specific product--his lawyering skills--in that 22 of the 25 case summaries described cases he successfully handled.
• Hunter named his law firm in addition to himself in 19 of these posts.
• The blog is on his law firm's commercial website (Hunter & Lipton PC) rather than an independent site dedicated to the blog.
• The website uses the same frame for soliciting clients as it does for the blog.
• The blog does not allow for discourse about the cases, whereas noncommercial blogs often do so by allowing readers to post comments.
Hunter did not transform the blog into political speech, the court said, by including five general legal posts and three discussions about cases he did not handle.
“When considered as a whole, the economically motivated blog overtly proposes a commercial transaction that is an advertisement of a specific product,” the court found.
Kevin O'Keefe, publisher and chief executive officer of LexBlog, emphasized in an interview with BNA that the court did not say all lawyer blogs amount to commercial speech.
Rather, he said, the court looked at the totality of this particular blog and concluded that it is commercial speech, without generalizing that holding to all blogs.
O'Keefe, who uses his site “Real Lawyers Have Blogs” to comment on the law and marketing, distinguished between most lawyers' blogs, which provide insight and commentary, and Hunter's “atypical” blog, which the court found to be an advertisement of his results.
“Lawyers shouldn't read the case as saying you have to put disclaimers on all your social media,” he told BNA. “I won't advise my clients to put a disclaimer on their blogs.”
Under the standards in Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557 (1980), commercial speech is entitled to First Amendment protection if it concerns lawful activity and is not misleading. For a restriction to be upheld, the government must assert a substantial interest in the restriction, the limitations must directly advance that interest, and the regulation must be narrowly tailored to achieve that interest.
Applying those standards, the court ruled that although Hunter's blog posts discussing lawful activity are not inherently misleading, “they have the potential to be misleading.”
The state bar has a substantial interest “in protecting the public from an attorney's self-promoting representations that could lead the public to mistakenly believe that they are guaranteed to obtain the same positive results if they were to hire Hunter,” Powell said.
The court found that the bar's disclaimer requirement directly advances this interest and is no more restrictive than necessary, unlike outright bans on advertising. Accordingly, it concluded that Rules 7.1 and 7.2 do not violate the First Amendment as applied to Hunter's blog posts.
The court also decided, however, that the three-judge disciplinary panel erred by allowing Hunter to use a lesser disclaimer that does not meet all the requirements of Rule 7.2(a)(3).
Whereas the panel directed Hunter to use a single disclaimer on the blog, the rule itself requires a disclaimer to be included on all case-related posts in the specific manner and format set out in the rule, the court explained.
In a dissenting opinion joined by Justice Elizabeth A. McClanahan, Justice Donald W. Lemons contended that the posts on Hunter's blog are political speech protected by the First Amendment and that he cannot be forced to include the advertising disclaimer.
Lemons emphasized that Hunter's blog describes how criminal trials in Virginia are conducted and explains how the acquittal of some of his clients has exposed flaws in the criminal justice system. This is not commercial speech, he contended, merely because Hunter mostly discusses his victories or because the blog is accessed through the law firm's website and is not interactive. “The mere existence of some commercial motivation does not change otherwise political speech into commercial speech,” he added.
The bar did not produce evidence that anyone has found the posts to be misleading, Lemons also pointed out, saying there appears to be little public benefit from requiring Hunter to post a disclaimer conceding that his article are advertisements.
In an interview with BNA, Virginia ethics expert Thomas E. Spahn said that “the trend in most states favors treating lawyer advertising like other advertising,” and that “most states are moving in the opposite direction” from this decision on the issue of requiring disclaimers. “I think disclaimers that are too severe will not survive scrutiny,” Spahn added. He practices with McGuire Woods in Tysons Corner, Va.
Spahn said he believes it is insulting to the public to assume that people can't make up their own minds about advertising, so long as the information is truthful. People who read a lawyer's description of a case won't be fooled into thinking those same results are guaranteed in their own case, he said.
Thomas R. Julin, whose practice with Hunton & Williams in Miami focuses on First Amendment litigation, told BNA the case illustrates the difficulty that appellate courts are having with the commercial speech doctrine.
Some have suggested, Julin noted, that the Supreme Court should do away with the distinction between political and commercial speech and instead treat all speech as fully protected by the First Amendment. “This case could provide the vehicle for the Court finally to give commercial speech the full protection that it deserves,” he said.
On the other hand, Julin said, the Supreme Court also might be inclined to take this case to make clear that its definition of “commercial speech” does not include the type of speech at issue here. In its most recent commercial cases, he explained, the court has said that commercial speech does nothing more than propose a commercial transaction, and it has rejected the concept that economically motivated speech receives less First Amendment protection.
“In any event, I do not think the Supreme Court would agree that the disclaimer requirement is justifiable under the First Amendment merely because the presentation of certain case results is potentially misleading,” Julin said.
Although the Supreme Court said in Bates v. Arizona State Bar, 433 U.S. 350 (1977), that restrictions could be placed on lawyer advertising, consumers are much more skeptical about advertising now, and have more information available to check out what lawyers say, he pointed out.
Julin also said that boilerplate disclaimers are ineffective. “No one reads or understands them,” he asserted.
In the other major aspect of the Hunter decision, the court held unanimously that the lawyer did not violate Rule 1.6 on lawyer-client confidentiality by including in his blog postings public details about his clients' concluded cases.
Virginia's Rule 1.6 forbids a lawyer to disclose information obtained in the attorney-client relationship if the disclosure “would be embarrassing or would be likely to be detrimental to the client,” unless the client consents after consultation.
Notwithstanding that restriction, Hunter has a First Amendment right to blog about his cases, the court concluded. It distinguished decisions cited by the state bar, saying they involved pending proceedings.
Citing Gentile v. Nevada State Bar, 501 U.S. 1030 (1991), the court said it is settled that attorney speech about public information from cases is protected by the First Amendment, but it may be regulated if it poses a substantial likelihood of materially prejudicing a pending case.
All of Hunter's blog posts involved matters that had been concluded, the court pointed out. Moreover, it commented that all of the information in Hunter's blog was already public and would been protected speech had it been disseminated instead by the news media or others.
“State action that punishes the publication of truthful information can rarely survive constitutional scrutiny,” Powell declared.
The state bar contended that if lawyers were permitted to repeat information made in public judicial proceedings, clients would be inhibited from talking to their attorneys and public confidence in the legal profession would be undermined.
Those concerns were unsupported by the evidence, the court said. “To the extent that the information is aired in a public forum, privacy considerations must yield to First Amendment protections,” the court stated. “In that respect, a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom.”
McCauley told BNA that the bar's Standing Committee on Legal Ethics “will be studying the issue and will report and make recommendations to the bar's leadership regarding what further action should be taken.”
But Julin called this aspect of the Hunter decision “a wonderful vindication of First Amendment rights that is long overdue.”
“It may not be wise for a lawyer to talk about a case in a way that is embarrassing or insulting to a client or former client, but once the facts about a client's problems are known, lawyers should be as free to talk about those facts and comment on them as any other citizens, just as the court holds here,” Julin said.
In comments to BNA, Massachusetts attorney and blogger Robert Ambrogi said the court's key holding is that “the bar cannot prohibit an attorney from blogging about truthful information made in a public judicial proceeding,” even when the commentary is by a lawyer who was directly involved.
The court was careful to distinguish lawyer commentary about pending cases, Ambrogi pointed out, noting that the proceedings Hunter wrote about were concluded matters. “Lawyers do not have the same freedom to blog about pending cases; rather, they have to avoid any public statements that could prejudice a client's case,” he said.
Ambrogi said that in his opinion “lawyers should always think twice before blogging about their own cases.” It is okay, he suggested, to blog in general terms about outcomes that are public, such as success in a jury trial or a winning appellate argument. “But lawyers should avoid talking about pending matters and avoid ever getting too deep into specifics,” he recommended.
Speaking with BNA after the decision was issued, Hunter said he never hid that his blog was partly for marketing his practice. But as the dissent points out, he commented, the blog explains and discusses the criminal justice system and perceived problems with it, such as overbroad use of federal RICO charges.
Hunter said that First Amendment protection should not depend on whether readers are able to submit comments or whether the blog is separate from the firm's website. It is expensive to have two separate websites, and if comments are invited the site has to be monitored constantly to prevent people from engaging in spam and trash talk, he said.
On the confidentiality issue, Hunter said the case sets a bright-line rule that client consent is not required to disclose what happened in a public court proceeding. “We do not have secret trials in this country,” he stated.
But Hunter said that from now on he plans to get client consent as a courtesy when a “small case” that has not been publicized involves big issues that he wants to write about.
Full text at http://op.bna.com/mopc.nsf/r?Open=kswn-95cqjd.
Copyright 2013, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
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