Ethics Follow Up 2: Will Virginia law blogger’s challenge to discipline deprive other blogs of First Amendment protection?

In October 2011, I blogged about a Virginia lawyer Horace Hunter’s challenge to a disciplinary charge  for failing to include a disclaimer on his blog stating that results in past cases handled by the firm (and reported on the blog) are unique to the facts and do not guarantee a similar outcome in other cases.  Hunter refused, arguing that his blog constituted First Amendment protected speech and therefore, a disclaimer limiting his speech rights was unconstitutional.  I felt compelled to support the Hunter’s fight, though I was skeptical:  to me, his blog, which was nothing more than a cherry-picked newsfeed of his firm’s highlight, seemed much more like advertising than protected speech.  But I feared that if the Hunter’s blog was classified as advertising, the door would open to increased regulation even for legitimate, information-rich or opinion-based law blogs.

Hunter won his case  before a three judge panel which overturned the Virginia disciplinary committee’s ruling.  Now, via Ben Glass and John Cord, I’ve learned that the case has made its way up to the Virginia Supreme Court.  Hunter’s failure to include the disclaimer is still at issue, but as Ben Glass notes in his summary, the Virginia regulators also seek sanction because Hunter’s publication of case summaries revealed information embarrassing to his clients, without their consent.

Hunter’s  brief argues that his blog was First Amendment protected speech. Trouble is, there’s little that Hunter’s lawyer could do to back up that claim. Hunter’s so-called blog was basically a newsfeed (later supplemented with a few opinion pieces when the regulators came calling) of his victories; there’s no opinion or in depth analysis on the order of these criminal defense bloggers or even basic information or FAQs or how-tos to educate readers about their rights. I fear that based on the record in the case, the Virginia Supreme Court will find, as a matter of law, that blogs are commercial speech (read advertising) or at best, a hybrid of protected and commercial speech, instead of being pure First Amendment content.

I’m also fully not comfortable with lawyers posting about any matters – even those of public record – without client consent.   I don’t think that Hunter ought to be sanctioned (particularly when the prohibition is far from clear) or that writing about matters of public record ought to be a disciplinary offense. Rather, this is one of those types of matters where lawyers need to exert some self-control and keep in mind their obligation to protect client privacy.   Would it hurt to take the time to place a call to former clients to ask to post about their matter on your website?  (in fact, for those who are marketing-oriented, it’s a good excuse to reconnect and keep those referrals wheels greased) If Hunter had done so, he wouldn’t be in this predicament now.

Though the facts of Hunter’s case aren’t great in my view, I side with the First Amendment so I’m rooting for his victory. I just wish that the lawyer who vindicates First Amendment rights for bloggers could have been a real blogger, not a flawger.

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