Legal Ethics

Can lawyer name clients on blog without permission? This court says yes

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A Virginia lawyer who blogged about his concluded criminal cases and named clients without their permission had a First Amendment right to do so, the Virginia Supreme Court has ruled.

The Virginia State Bar had contended lawyer Horace Frazier Hunter had discussed information that could be embarrassing or possibly detrimental to clients in violation of an ethics rule violating disclosure of client confidences. But all of the information discussed at Hunter’s blog, This Week in Richmond Criminal Defense, was a matter of public record, the court said in its opinion (PDF) issued Thursday.

“To the extent that the information is aired in a public forum, privacy considerations must yield to First Amendment protections,” the court said. “In that respect, a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom.”

The court did, however, uphold legal ethics rules requiring a disclaimer on legal advertising. The Virginia State Bar has a substantial governmental interest in protecting the public from potentially misleading attorney advertising, and its disclaimer requirement does not violate the First Amendment, the court said.

The court said the state bar could require a disclaimer for Hunter’s blog posts because they were commercial speech and they had the potential to be misleading.

Hunter had posted 25 write-ups about cases and five write-ups about legal issues at his blog when the Virginia State Bar presented evidence at an October 2011 hearing. In 22 of the cases, Hunter represented the criminal defendant and all had favorable results. At the time, the blog did not include a disclaimer warning that the results were not intended to suggest similar outcomes in other cases.

Hunter had testified he believed it was important to name his clients to give an accurate description of the case, and he did not think it necessary to obtain their permission because the cases were a matter of public record. He acknowledged that marketing is one aim of his blog.

The Virginia Supreme Court contrasted the commercial nature of Hunter’s blog with other legal blogs. The court noted that Hunter’s blog is posted at his law firm’s website, unlike How Appealing, a blog by appellate litigator Howard Bashman. Nor does Hunter’s blog allow commentary, in contrast to blogs such as Legal Blog Watch and Above the Law.

“Instead, in furtherance of his commercial pursuit, Hunter invites the reader to ‘contact us’ the same way one seeking legal representation would contact the firm through the website,” the court said.

Hat tip to How Appealing.

Prior coverage: “Around the Blawgosphere: Va. Court Finds Lawyer Can Blog on Publicly Available Info About His Cases”

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