Jun 14, 2012

Court Says 1st Amendment Protects Lawyer’s Blogging

10 Comments · Posted by Robert Ambrogi in General

[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.

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10 comments

  • Author comment by Max Kennerly, Esq. · June 14, 2012 at 8:11 pm

    Good, though I’m disappointed to see the disclaimer part upheld. If Horace Hunter was Williams Connolly, which regularly practices in Virginia and has multiple Virginia lawyers, no one would have batted an eye. How do I know this? Because I can go to their news feed and see the latest post bragging about winning cert in a criminal case: http://www.wc.com/news-2267.html

    No disclaimer that this result isn’t guaranteed, but no one cares because, well, gosh, different rules apply to the big firms. It’s an outrage. Enforce the disclaimer against everyone — including the big firms, including on their newsletters — or admit its pointless and get rid of it.

    Reply

  • Compliance Bits and Pieces for June 15 – Compliance Building · June 15, 2012 at 8:00 am

    [...] Court Says 1st Amendment Protects Lawyer’s Blogging by Robert Ambrogi in LawSites [...]

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  • shg · June 15, 2012 at 9:39 am

    Just because Horace tried to sneak his marketing in as blogging, and the idiots at the state bar couldn’t tell the difference, doesn’t mean you have to perpetuate the confusion, Bob.

    What Horace did was pure, unadulterated, self-aggrandizing marketing. It had nothing to do with blogging.

    Reply

    • James McCauley · April 8, 2013 at 9:49 am

      Dear shg: If you are going to comment about a case, it would be helpful to read it first. If you had actually read and understood the Hunter decision you would realize that the “idiots” at the state bar actually prevailed on the advertising issue and persuaded the court that Mr. Hunter’s blog was commercial speech subject to the disclaimer requirement.

      Jim McCauley, Ethics Counsel (aka–one of the “idiots at the state bar.”

      Reply

  • Virginia Court: First Amendment protection for lawyer-bloggers : Real Lawyers Have Blogs · June 15, 2012 at 12:19 pm

    [...] reported by Bob Ambrogi yesterday, the Portsmouth Circuit Court overturned the finding of misconduct as it pertained to [...]

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  • Virginia Court Upholds Lawyer’s Right to Blog | WebLaws.org Blog · June 24, 2012 at 5:28 am

    [...] Court Says 1st Amendment Protects Lawyer’s Blogging This entry was posted in Blogging by Robb. Bookmark the permalink. [...]

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  • Ben Glass · January 1, 2013 at 9:10 am

    The case is in the Supreme Court of Virginia and there are several excellent First Amendment – Lawyer Advertising briefs filed. I’ve posted them here.

    http://www.greatlegalmarketing.com/blog/lawyer-blogging-and-the-first-amendment.cfm

    Reply

  • Lawyers, Social Media and Professionalism | blogkick · May 10, 2013 at 9:29 am

    [...] case centered on the professional blog of Richmond, VA attorney Horace F. Hunter, whose blog included general thoughts on the legal system, case summaries, and commentaries on cases [...]

    Reply

  • Rachel · September 6, 2013 at 12:52 am

    Freedom of Speech is a constitutional right. I’m glad they ruled in his favor!

    Reply

  • Virginia Court: First Amendment protection for lawyer-bloggers | Real Lawyers Have Blogs · November 8, 2013 at 2:28 pm

    […] reported by Bob Ambrogi yesterday, the Portsmouth Circuit Court overturned the finding of misconduct as it pertained to […]

    Reply

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