Nicole Black, The Daily Record Newswire
When blogging first became popular years ago, lawyers were often reluctant to participate due to ethical concerns. Even today, that hesitancy remains despite the large scale adoption of blogging by lawyers and non-lawyers alike.
Hopefully, a recent Virginia decision, Horace Frazier Hunter v. Record No. 121472, handed down in February of this year, will quell some of the remaining concerns. According to the decision issued by the Virginia Supreme Court, not only can Virginia lawyers ethically blog about their cases, they can even list the names of their clients when doing so, as long as their blog includes an appropriate disclaimer.
In this case, the Virginia State Bar had determined that criminal defense attorney Horace Frazier Hunter had violated client confidences by discussing information about closed cases, including discussing favorable case outcomes and including the client’s name when doing so. Hunter appealed the decision, which ultimately reached the Virginia Supreme Court.
Among the issues considered by the court were whether his blog posts were considered to be commercial speech and whether he could ethically discuss public information about his clients without their consent.
First, the court addressed the issue of whether Hunter’s blog posts constituted commercial speech and thus were subject to regulation by the Virginia State Bar. The court concluded that the posts were commercial speech because, among other things: 1) Hunter admitted that his motivation for posting was, in part, economic; 2) the posts served as an advertisement since they highlighted favorable results obtained on behalf of clients; 3) Hunter referred to his lawyering skills in the vast majority of his posts; 4) the blog was part of his law firm’s website rather than a freestanding blog; and 5) the blog was not interactive since it did not permit comments.
Next, the court moved on to the issue of whether Hunter had violated client confidentiality by discussing the outcomes of closed cases and including client’s names in the blog posts. The court concluded that First Amendment protections applied since the cases discussed on the blog were closed: “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.”
“The VSB argues that it can prohibit an attorney from repeating truthful information made in a public judicial proceeding even though others can disseminate this information because an attorney repeating it could inhibit clients from freely communicating with their attorneys or because it would undermine public confidence in the legal profession,” the court explained.
“Such concerns, however, are unsupported by the evidence. To the extent that the information is aired in a public forum, privacy considerations must yield to First Amendment protections. In that respect, a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom.”
However, although the court held that Hunter’s posts were protected by the First Amendment, it also concluded that the bar could regulate the speech and require disclaimers, since the speech had the potential to be misleading. The court reversed and remanded the case for additional considerations regarding the issue of appropriate disclaimers.
All in all, I think this was a good decision, with one exception. I disagree with the court’s assertion that the failure to allow commenting on blog posts is evidence that a blog is intended for commercial purposes. That is simply not the case.
Permitting comments on blogs has fallen out of favor among many bloggers, myself included, due to the massive amounts of spam comments that are posted. So I, like many other bloggers, have simply decided to no longer permit comments in order to avoid spending unnecessary amounts of time moderating comments from spambots, marketers and
self-promoters.
But, aside from that one area of disagreement, this was, overall, a good decision. My hope is that decisions like this one will have the effect of encouraging lawyers to learn more about blogging and other opportunities to interact online.
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Nicole Black is VP at MyCaseInc.com, a cloud-based law practice management platform. She is also of counsel to Fiandach & Fiandach in Rochester and is a GigaOM Pro analyst. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She speaks regularly at conferences regarding the intersection of law and technology. She publishes three legal blogs and can be reached at niki@mycaseinc.com.
