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

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.