Court Says 1st Amendment Protects Lawyer’s Blogging

[Update: See Will Hornsby’s perspective on the Hunter case.]

A three-judge panel in Virginia has issued a decision that is important for lawyer-bloggers everywhere. The panel ruled that  a lawyer has a First Amendment right to blog about his own cases, at least with regard to information that is already available on the public record. (Needless to say, you should never blog about privileged client information.)

Horace F. Hunter

The ruling came in the case of Richmond criminal defense lawyer Horace F. Hunter, who was hit with disciplinary charges by the Virginia State Bar over his criminal law blog where he wrote about cases he had handled and other criminal-law issues. Last October, the bar gave Hunter a public admonition over his blogging and ordered him to add a disclaimer stating that his blog is advertising. Hunter appealed the bar’s determination, asserting that it violates his First Amendment rights.

In a decision last week, the Portsmouth Circuit Court sided with Hunter, overturning the finding of misconduct under Rule 1.6, which governs confidentiality of client information. The court concluded that the finding violated the First Amendment.

The court did uphold one aspect of the disciplinary committee’s conclusion. It said that Hunter should have included a disclaimer on his website warning that results could vary in others’ cases. It upheld a public admonition for this violation and ordered him to add the disclaimer to his site.

For more on this latest story, see the reports in Virginia Lawyers Weekly and on the blog Ride the Lightning.

Also, back in October and November, we devoted two episodes of our Lawyer2Lawyer podcast to Hunter’s case. In the first of the two, we discussed the case and its broader significance for legal blogging with three guests: Kevin O’Keefe, CEO and publisher of LexBlogEric E. Johnson, professor at the University of North Dakota School of Law and author of Blog Law Blog; and Peter Vieth, legal editor for Virginia Lawyers Weekly. The next week, we featured an exclusive one-on-one interview with Hunter, where he talked about his blog, the bar’s proceedings against him, and why he was continuing to fight it.