Many lawyers keep blogs on the side. Most talk about amusing happenings in the legal community. But a few like to use the blog as a forum to describe their own legal careers.
But blogs like this raise numerous questions, such as, “Does the blog constitute an advertisement?,” and, “Does the blog violate client confidentiality?” and, “Why doesn’t the blog have more LOLcats?”
Now the Virginia Supreme Court has issued a ruling that settles some of these questions and opens the door for more lawyers to join the blogging community, at least in Virginia. And there’s a decent chance the U.S. Supreme Court will look at this case too….
Horace Hunter v. Virginia State Bar,
explored these questions. The lower court had disciplined Hunter, a criminal defense lawyer, for maintaining a blog, This Week In Richmond Criminal Defense, without clearly identifying it as an advertisement — even though Hunter’s writing included both personal accounts of cases and a few posts of general commentary on the legal system.
That decision raised a more important question, since it implicated me directly, “If general commentary written by an attorney required an advertising disclaimer, does Above the Law need a disclaimer even though none of us maintain a traditional legal practice?”
The Virginia Supreme Court eased up on Hunter:
The Virginia majority held that Hunter did not have to seek clients’ permission to discuss past closed cases, even if there was a possibility that the clients would suffer embarrassment or some other harm by the public airing of their affairs. The court also ruled that Hunter’s blogging about past courtroom successes on his firm’s website constituted an advertisement, even though he also included commentary on the criminal justice system. As a result, the majority said he should have included a standard disclaimer cautioning against too much reliance on past results.
So the need for a disclaimer remained, but at least he was no longer in trouble for writing about his former clients. Allowing lawyers to blog about their clients against their wishes sounds like a hot mess waiting to happen. Because criminal defendants are not keen on having the Internet remind the world on a daily basis that they were once run through the system.
As for the “ATL disclaimer” issue, the opinion goes to great lengths to note that Hunter’s blog is on his firm’s website and he only blogged about cases he won, distinctions that suggest that not every legal blog is commercial speech. The opinion was kind enough to put our personal legal questions to rest by citing Above the Law as the sort of legal blog that transcended the strictures that apply to Hunter’s blog. According to the Virginia Supreme Court, ATL is not legal advertising because we have commenters. Thanks y’all.
Should the U.S. Supreme Court decide to take up the case, it may reexamine the whole nature of commercial vs. political speech:
One broad question the Hunter case raises—and which the U.S. Supreme Court might want to address—is whether the distinction between commercial speech and political speech ought to survive. For years, some First Amendment scholars have argued that the dichotomy has produced a confusing jurisprudence governing the varying degrees of constitutional protection for expression. Perhaps it is time for the justices to come up with a clear set of First Amendment rules covering all forms of speech.
Lawyer-bloggers in Virginia will just have to keep placing disclaimers on their work. At least until
SCOUTS SCOTUS (autocorrect is a harsh mistress) turns to this pressing issue, slated for sometime after they finish ending the “racial entitlement” that is “voting.”