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Should Lawyers Worry About Virginia State Bar Crackdown on Firm’s Law Blog?

Posted Oct 11, 2011 7:04 PM CDT
By Rachel M. Zahorsky

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Updated: Richmond, Va.-based criminal defense attorney Horace Hunter, who blogs about cases he’s worked on (and national and local criminal justice issues) at Richmond Criminal Defense News, has been charged with misconduct by the Virginia State Bar.

The charge comes amid concerns by bar authorities that Hunter’s blog on his firm’s website is actually an advertisement, rather than an informative news and commentary website as Hunter claims, a move that could make other lawyer-bloggers wary, reports the Washington Post‘s Capital Business blog.

“Hunter’s case has some lawyers—for whom blogging has become commonplace—as well as free speech and social media law experts questioning whether the bar is overreaching in its regulation of online speech in the social media age,” wrote the Post’s Catherine Ho.

LexBlog’s Kevin O’Keefe says it’s the Post’s particular analysis of the event, not the actions of the State Bar, that could have a chilling effect on lawyer-bloggers who do a service to the profession by making the law more accessible to consumers and businesspeople.

“There there is no record of disciplinary action against Virginia attorneys regarding blogging dating back to 1999,” O’Keefe wrote in a separate Real Lawyers Have Blogs post. “Not a big risk here with lawyers who blog.”

Washington, D.C., solo Carolyn Elefant also noted the Post's coverage at My Shingle. However, she says that because Hunter's blog posts note cases that his firm has won, Virginia Ethics Rule 7.2 seems to apply. That rule calls for lawyers, when listing previous wins in advertising, to first include a disclaimer stating that every case is different, and that prior results don't guarantee future success. Hunter didn't have the disclaimer in his blog posts noting his firm's wins, and that's what the bar is taking issue with.

Elefant hopes for the sake of legal blogging, though, that this case is resolved in Hunter's favor. "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," Elefant wrote.

The case is scheduled for a hearing Oct. 18.

Updated at 11:09 p.m. to include content from My Shingle.

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