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By Jeff Day
A criminal defense attorney who blogs about criminal proceedings, including his clients' cases, violated Virginia lawyer conduct rules by including clients' names in blog posts without their consent, a Virginia State Bar disciplinary committee determined in an order released Nov. 8 (In re Hunter, Virginia State Bar, 3d Dist. Comm., VSB No. 11-032-084907, 11/8/11).
The panel also found that the attorney's blog, This Week in Richmond Criminal Defense, hosted on his law firm's website, constitutes advertising and therefore should have included a disclaimer required by rules governing lawyer advertising.
The panel's order publicly admonishes the attorney, Horace F. Hunter, and warns that further ethics violations will result in more serious sanctions.
“Respondent's website discusses information regarding his clients' cases, the disclosure of which would be embarrassing or be likely to be detrimental to the client,” the committee's opinion states. “Respondent did not receive consent from any of the clients listed in the postings on the respondent's web page prior to disseminating such case information.”
Hunter, one of the two principals at Hunter & Lipton PC, based in Richmond, Va., maintains that his blog does not violate ethics standards. He told BNA Nov. 15 that he has appealed the disciplinary order to a panel of state court judges and that he expects to prevail when judges, not bar volunteers, rule on his conduct.
According to Hunter, the names of his clients are not “confidential information” that he is bound to protect under Virginia Rule of Professional Conduct 1.6. He said that the blog posts with clients' names are based entirely on open court proceedings and other matters of public record, which he said include clients' names. Nothing from his confidential attorney-client discussions has been disclosed, Hunter stated.
As for the finding that his blog posts require advertising disclaimers mandated by Rules 7.1 and 7.2, Hunter maintains that the case comments are protected free speech, not advertising. However, he noted that his blog posts now include short disclaimers.
Rule 7.1(a)(4) prohibits a communication about a lawyer that “is likely to create an unjustified expectation about results the lawyer can achieve.” Rule 7.2(a)(3) specifies the disclaimer that lawyers must use if their advertisements include “specific or cumulative case results.” (See box.)
Commenting on Hunter's statements, Virginia State Bar Legal Ethics Counsel James McCauley told BNA that “99.9 percent” of Virginia bar members who blog about specific cases include the advertising disclaimer specified in Rule 7.2.
Moreover, he said, Hunter's blog appears not on a personal or legal commentary website but on his law firm's website. As such, it must have a marketing effect, whether intended or not, McCauley said Nov. 17.
As for the confidentiality issue, McCauley disputed Hunter's contention that client names are necessarily revealed to the public in open court and in court records. The state's general district courts are not courts of record, he said.
McCauley maintained that rapid-fire criminal trials in district court are not open trials. The short form on which judges record decisions have no details on the cases and thus do not constitute a public record of a trial, McCauley asserted. Unless the case is detailed in an easily accessible public record, Hunter's claim has no basis, he told BNA.
Even if trials in general district court produced public disclosures, the confidentiality standard in Rule 1.6 bars attorneys from disclosing any significant case information without client consent, McCauley said. Like most other states, Virginia prohibits lawyers from publicly disclosing “information relating to the representation of a client,” a much broader proscription than attorney-client privilege, he said.
McCauley said that during Hunter's proceeding before the disciplinary committee, a former client testified that he was disturbed by Hunter's disclosure of the client's positive cocaine test in a blog post questioning the reliability of the test. According to McCauley, the test result was not discussed in court and is not mentioned on the judge's decision form.
Even if the test results had been mentioned in open court, public disclosure by any source would be embarrassing or detrimental to the client, McCauley stated. Noting that the defendant's attorney disclosed it, McCauley said “it does not get any worse than that.”
The analysis might be different if a general district court trial attracted widespread public attention that led to the disclosure of the client's identity, he added.
Asked if Hunter could blog about his cases without violating client confidentiality by not disclosing clients' names, McCauley said it would be acceptable, so long as the client cannot be identified by the description of the case.
Hunter's attorney in the disciplinary proceeding was Michael L. Rigsby, Richmond, Va., a former bar counsel for the Virginia State Bar. Assistant Bar Counsel Renu Brennan represented the bar.
Full text of the disciplinary panel's order at http://op.bna.com/mopc.nsf/r?Open=kswn-8nfngf .
The Hunter & Lipton blog is available at http://hunterlipton.com/index.php/news/archives/ .
Copyright 2011, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
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