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First Amendment Challenge to Restriction on Lawyer’s Blog Likely to Flounder – And Bring Other Blogs Down With It

by Carolyn Elefant on October 10, 2011 · 17 comments

in Ethics & Malpractice Issues, Ethics Issues, Websites and Blogs

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As the saying goes, bad facts make bad law. And there’s going to be some very bad law for lawyer blogs indeed if Virginia small firm lawyer Horace Hunter loses his First Amendment challenge to the Virginia Bar’s attempt to require the firm to include certain disclaimers on its blog.

Don’t get me wrong – I’d love to see Hunter pull this one out. If there’s one thing I relish even more than a win for the First Amendment, it’s when that victory comes by the hand of a solo or small firm lawyer. And the Virginia Bar’s action is hardly sympathetic as it it arises not out of a consumer complaint of deception but rather, an overreaching practice of randomly auditing lawyer websites and more recently (to the best of my knowledge), social media profiles.

Unfortunately, the law and facts are still on the Virginia Bar’s side. According to the Washington Post, the Virgina Bar alleges that Hunter violated Virginia’s ethics rules by failing to include on his blog a disclaimer stating that the results reported are specific to the unique facts of the case and do not guarantee favorable results in other future cases. Hunter responds that his blog is not an advertisement but instead, disseminates news and commentary.  Therefore claims Hunter, both before the board as well as in an earlier Section 1983 challenge (dismissed per the Younger Doctrine), a disclaimer intrudes on his First Amendment rights.  

Except…Hunter’s “blog” really isn’t a blog at all, at least as I define the term. It’s more akin to a running news feed, with at least half of the “posts” reporting on cases that Hunter or his firm handled.  Not to diminish Hunter, his record is fairly impressive.  Nevertheless, the Virginia Bar rules whether posts on recent cases are accurate or not, Rule 7.2 of the Virginia Bar rules require a disclaimer, presumably to prevent members of the public from hiring a lawyer on the belief that the results obtained obtained in one matter will govern future proceedings.  As Andrew Flusche opines, many (but not all) of Hunter’s posts (such as this one) consist of specific case results and thus, in the absence of a disclaimer, “clearly” violate Virginia Ethics Rule 7.2.

I’m not a big fan of disclaimers, preferring instead to assume that the potential clients have the intelligence to understand that not all cases are the same, and just because a lawyer’s won one case doesn’t mean that he’ll ever win another.  But here, I don’t find this disclaimer – or at least some kind of caveat stating that the cases are “representative” matters – entirely unreasonable or unduly burdensome on the First Amendment.  Without any type of disclaimer specifying that a listed case is representative or not a guarantee of results, lawyers can “cherry-pick” the cases that they seek to list on their website giving the impression that the lawyer has only enjoyed a string of victories and is capable of winning any case that comes his way.  Moreover, I’d even argue that where lawyers summarize the results of their own cases, they should be required to link to the actual decision if available online to let clients judge for themselves whether the victory is consistent with the lawyer’s description (recall that Rakofsky posted on Facebook that he’d won a mistrial…he just didn’t say why).

Trouble is, Hunter has made this case about more than just website disclaimers, but about blogging.  Here, if the Virginia Bar finds that Hunter’s news feed qua blog is an advertisement and therefore requires disclaimers, mark my words, that decision will be construed broadly to encompass even legitimate blogs that discusses substantive legal issues. A blog that analyzes legal issues or summarizes recent cases is no more of an advertisement than a law review article or op-ed piece, neither of which must be tattooed with disclaimers.  To impose disclaimer requirements on blogs and not any other types of scholarly or informational legal resources diminishes their credibility and in so doing, violates the First Amendment.

After Hunter, however, blogs will no longer be associated with scholarship or education or opinion in Virginia. Instead, all blogs, irrespective of content, will be regarded as tools designed to self-promote or market a law firm’s service rather than to educate the public, ignite debate amongst colleagues or inspire. Very bad law indeed.

  • http://constructionlawva.com constructionlaw

    Great analysis.  I do have a link to a disclaimer at Musings, but out of an abundance of caution.  I also rarely discuss my own cases or results, preferring instead to discuss general topics and what clients, lawyers and other folks in the construction world can learn from the news that’s out there.  Hopefully this won’t bring down great blogs like yours and others in VA.

  • Anonymous

    No potential client genuinely believes, “gosh, lawyer got X acquitted for murder, and I’m on trial for murder, so I’ll be acquitted.” Not one.

    If a lawyer explicitly promises a result — we will get you money for your pain, we will get you acquitted, etc — that’s a problem and should be prohibited entirely, but merely talking about your prior cases is an entirely different ball of wax.

    Prohibiting lawyers from talking about their cases just makes the legal profession as a whole more opaque to non-lawyers. Requiring lawyers add a “disclaimer” to something that didn’t even make any sort of statements worthy of “disclaiming” is ludicrous and, hopefully, will not survive court review.

  • Carolyn Elefant

    To be honest, I am kind of on the fence about disclaimers. I guess in this case, I’d rather see the disclaimer upheld but the sanctity of blogs preserved.  The problem with this guy’s website is that his news feed is largely a stream of self promotional stories.  At a minimum, he should be required to state that the cases listed are “representative matters.” (you’re right that the disclaimer regarding results is almost a non-sequiter) I think that lawyers can mislead the public by touting only their victories but not mentioning their losses. The phrase “representative” takes care of that problem.
    To be honest, if this were a bonafide blog and a lawyer discussed a case from time to time in an educational way, I don’t think that this matter would have come up and if it had, it would be a much stronger First Amendment argument.

  • Anonymous

    Anyone with the wherewithal to understand the term “representative matters” is undoubtedly familiar with the human tendency to mention good things and not bad things. I’d go so far as to say that anyone who knows what “representative matters” means is so astute that they already fully understand that each legal case is different and that prior results don’t guarantee future performance.

    Here’s where I’m stuck: the “disclaimer” is required in a variety of circumstances where there is no problematic statement to “disclaim.” Promising a result? That’s bad and should be prohibited. Falsely claiming an unbroken winning streak? That’s bad and should be prohibited.

    But none of the examples in front of us do that. He just talked about a case (AFAIK entirely accurately) and didn’t say anything about it guaranteeing results. Who out there thinks, “this lawyer won one case, and so that implicitly means he won every case in the past and will win my case in the future?” If any of those people exist, they will not be deterred in their irrational beliefs by an obviously pro forma disclaimer that uses legal verbage to disclaim a statement not actually made.

    It’s irrelevant to me that his blog is self-promoting (and I certainly don’t want the folks that inhabit the bar association to be the ones deciding which blogs are self-promoting and which are substantive commentary). As long as he’s not saying something to actually mislead clients (e.g., promising results or falsely stating his record), then I don’t see a real harm or a viable way to remedy that harm without making things even more confusing for non-lawyers.

  • Carolyn Elefant

    Actually, the self-promotional aspects of the blog are most important because self-promotion connotes advertising.  Rule 7.2 requires the “doesn’t guarantee results” disclaimer when a sit “advertises specific or cumulative case results.”  Thus, a lawyer-blogger who analyzes a variety of legal issues and throws in a discussion of his own cases would not need the disclaimer because the purpose of the blog is not advertising.  In this situation, the news feed of cases, cherry-picked to include largely his own cases does in my view seem to be an advertisement of cumulative case results. (BTW, this case started back in February 2011 and Hunter filed a 1983 in May 2011. Coincidentally, the third party news stories have been added after that date; prior to 2011 it was all Hunter’s cases).  In any event, once you fit in the category of “advertising specific case results,” the bar can include the disclaimer requirement even though it may not fit in all cases.
    Now, it may be that our disagreement is on what constitutes “specific case results.”  Would it be a statement “I won 10 of 15 cases?” or would it be a listing of cases?   I’ve taken the latter interpretation.

  • shg

    I assume you’ve deliberately missed the point, Max, since to do otherwise would be unbearably ignorant. The point isn’t a direct correlation between a case won and the potential client’s case, but to create the general impression that a lawyer wins all or most of his cases, and wins big money.  It’s the impression of quality and success that’s implied, and that’s why lawyers use wins to market themselves. If it didn’t convey that impression, and do so purposefully, then it wouldn’t be used for marketing.

    As for what actually misleads, that happens on a client by client basis.  Most clients lack your astute understanding of law, lawyers and humanity, and some are susceptible to being misled.  But I bet you already knew.

  • Anonymous

    I recall your post for some time ago describing Stern v. Bluestone. Did you disclaim to any and all potential clients that, your experience in Stern notwithstanding, you were no better than a lawyer found by throwing darts at the Yellow Pages because, well, you know, it wasn’t a “representative matter”?

    Of course not. You concluded, “The defendant in this case was Andrew Lavoott Bluestone, of The New York Attorney Malpractice Blog.  And who would a lawyer who specializes in plaintiff’s legal malpractice litigation go to be his lawyer?  Why, that would be me.”

    Did you mean to imply that you were an experienced lawyer whom another lawyer sought for assistance? I assume so, and there was nothing wrong with that: it happens to be 100% true. Was anyone mislead by that? Of course not.

    When an attorney guarantees a result or says something false, that’s a big problem. Otherwise, everything a lawyer writes “implies” something about them or another — MyShingle “implies” Carolyn understand business law, SimpleJustice “implies” Scott understands criminal defense — and we should all put a bunch of meaningless legalese on every page to confuse people even more. How about this language I just pulled from a PI site:

    “The personal injury cases above are a sampling of results achieved for our clients. This is a partial list and does not constitute a promise of any kind. Please remember that these personal injury cases and the results achieved were dependent on many factors, and results differ from case to case depending on the circumstances particular to each case.”

    I bet that’s just fine for the bar, even though it does absolutely nothing to inform the client of anything, and even though it can be immediately abrogated by the lawyer saying “we’ll get you a ton of cash” or the like.

    The first part of the disclaimer rule is the only part of any value: when discussing a case result, you must put it “in a context that is not misleading,” and lawyers who do otherwise are properly sanctioned. The rest just adds legalese to an already complicated situation.

  • shg

    Are the cases a representative sampling? I bet nobody mentions the losers, so they are a cherry-picked sampling, designed to convey the deliberate impression.  When lawyers list their losers along with their winners, let me know.

    And as for Stern v. Bluestone, you may remember that the point had nothing to do with me, and that I don’t practice civil law and there was no marketing aspect to it.  Not a good analogy.

    When you reach the “everything is marketing” argument, you’ve gone off the rails. While true in the existential sense, affirmative self-promotion is what Hunter did and what we’re talking about.  But if every lawyer website/blog had to have a disclaimer on it, so what? If you’re not marketing, what do you care?  And if you are marketing, then you should have a disclaimer.  Honesty and integrity are good things.

  • DBB

    I’ve always thought that the limits on advertising for lawyers to be questionable at best.  Other professionals have no trouble advertising without such restrictions.  There’s no reason to single out lawyers.  I tend to wonder if it is more about protecting the business of established attorneys than any ethical concerns.  I see no reason why lawyers should be treated any different than anyone else who advertises. 

  • Michael

    My problem with disclaimers in situations like these is that anybody who is able to understand the words as demanded by the bar is very unlikely to have ever believed the thing being disclaimed would have ever happened, and that the (hopefully very few) people who could have ever believed such a thing are also unlikely to be able to decipher the words of the disclaimer. Hence, while they might serve to CYA the disclaiming party, they effectively offer no societal value. (Not even reaching the separate problem of disclaimer overload, which impacts even people like me who could, if I had all the time in the world, actually understand most of what’s presented to me. And, yeah, I didn’t really read all 64 pages of the new iTunes TOS that I promised Apple I actually read and understood when I ran the app store the other day. Sue me.)

  • Bpalm

    There’s also new FTC guidelines on disclaimers on social media. But these are voluntary.

    http://www.webjuris.com/blogpost39_New_FTC_Guidelines_on_Full_Disclosure_in_Social_Media.html

  • Turk

    I’ve had a disclaimer on my blog for years. It sits at the bottom. No big deal. The problem is that, with blogs, there is an infinite array of grays between the pure promotional pablum and the well-written commentary.

    So one might make a rule that says, if the blog is mostly promotional, it needs a disclaimer. But then what the hell will “mostly” mean?

  • Jordan

    Carolyn:  He actually had a disclaimer on his blog…

    http://www.washingtonpost.com/r/2010-2019/WashingtonPost/2011/10/12/CapitalBusiness/Graphics/HunterChargeofMisconduct032411.pdf

    Look at Paragraph 11.  However, the bar claims the disclaimer was insufficient.  Public discipline is extremely harsh under the circumstances.  

  • Jordan

    This is my beef with this whole thing: the bar association is acting like the blog establishes an attorney / client relationship.  Let me explain…

    Let’s say you’re looking for a doctor to do a heart surgery.  You do a Google search and find the doctor who performed Dick Cheney’s heart surgery.  You call that doctor and say “Hey, can you take a look at me?  I’m having chest pains, shortness of breathing, and a tingly feeling in my left arm.”  In 99% of cases, the doctor is going to say “We did an EKG and an MRI, and in my professional opinion, you have a 40% chance of a recovery.”  You might say “Well, that Dick Cheney guy on your website, he’s had what, 50 heart attacks?  And  you kept him going!  Can’t you do that for me?”  And the doctor will probably say “Look, Dick’s situation is a bit different from yours because of blah blah blah.  You have an 80% blockage and history of smoking, plus you’re 30lbs overweight…”

    Same with lawyers.  That is what we do.  Before establishing an attorney / client relationship, just about any lawyer will analyze a case prior to agreeing to handle it and advise the client of its strengths and weaknesses.  They will tell the client, based on the facts provided, this is the attorney analysis, complete with risks and prospect of success.  A website with lots of victories might get a lot of people to call, but the bar is totally overlooking what happens after that — the attorney intake process.  I’m not aware of any website that allows you to retain an attorney without any intake process.  (and if there IS that type of website, the bar association should impose discipline).  

    In addition, has the bar identified any actual complaints about attorneys who post about all of their victories, a client retains them believing that lawyer wins all their cases, and then is disappointed when they lose based on reliance on a website?  Is there any evidence that disclaimers prevent this?  Or is this just a perceived risk with a perceived remedy?  What is the basis of this rule?

    I hope this guy wins his case.  Prosecution of this kind of stuff is ridiculous.  

  • Anonymous

    The letter you mentioned in your previous comment said that Hunter proposed a disclaimer, not that he had included one on the site. In addition, if you look at the news feed, you will see that it was not until 2011 that he began to supplement the feed with more general news items; prior to that, the news consisted only of firm cases.

    I agree with you on the other counts. The Virginia Bar has an audit program that to me is ridiculous – they should respond to allegations of client harm. At the same time, the rule is what it is – and is not sufficiently burdensome to violate First Amendment. I also do not think that Hunter should have gotten a reprimand or any sanction – the Bar should have issued a ruling, told him to change it and that would be that.

  • http://www.facebook.com/LiveLifeVeryBig Ben Glass

    This case is now in the Supreme Court of Virginia. I have collected the brief and they are “must reads” for any attorney who is interested in blogging and the First Amendment.  http://www.greatlegalmarketing.com/blog/lawyer-blogging-and-the-first-amendment.cfm

  • myshingle

    Thanks for the update Ben. Truth be told, this guy’s blog wasn’t really legitimate. Moreover, I would never use a client’s name without permission and I do think it’s deceptive to post only about winning cases but not losers. Nevertheless, the cure isn’t to ban the speech or to compel disclaimers that don’t do much to clarify, but instead, for the Bar and other lawyers to provide more educational materials to the public to explain how clients should interpret these types of claims. In short, though this particular type of advertising doesn’t thrill me, I have no choice but to come down on the side of speech.

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