06 Mar Virginia: Special Cases – a Lawyer’s Blog
On February 28, 2013, a divided Virginia Supreme Court opined in Hunter v. Virginia State Bar, No. 121472, an appeal from the Circuit Court for the City of Richmond. It addressed a special case of blogging by a lawyer in which “[n]owhere in these [trademarked blog] posts or on his website did Hunter include disclaimers”. Id. at *2.
First, Hunter found the non-interactive “blog posts, while containing some political commentary, are commercial speech.” Id. at *11. One factor was “the blog is on his law firm’s commercial website rather than an independent site dedicated to the blog”. Id.
Second, Hunter found the blog posts had “the potential to be misleading,” though were not “inherently misleading”. “States may not place an absolute prohibition on certain types of potentially misleading information,…if the information also may be presented in a way that is not deceptive,” notably by the posting of disclaimers. Id. at *15.
Third, Hunter found that the Virginia State Bar (“VSB”) “has a substantial government interest in protecting the public,” id. at 16; and that required disclaimers are “not more extensive than is necessary to serve that interest”. Id. at *17. Accordingly, Hunter concluded that VSB’s Rules 7.1 and 7.2 “do not violate the first Amendment” and are constitutional “[a]s applied to Hunter’s blog posts”. Id.
Fourth, Hunter held that the Richmond Circuit Court erred under the circumstances by imposing on Hunter only a single disclaimer that conflicted with the VSB Rule. Significantly, however, in so holding the Virginia Supreme Court emphasized that the lawyer “does not argue that the disclaimer required by the circuit court is an appropriate, less restrictive means of regulating his speech and, therefore, we decline to so hold”. Id. at *21-23.
Finally, Hunter held that the Richmond Circuit Court “did not err in determining that the VSB’s interpretation of Rule 1.6 violated the First Amendment.” Id. at *23. VSB cannot prohibit Hunter “from discussing information about a client or former client that is not protected by attorney-client privilege without express consent from the client”. Id. at 18-19.
Hunter noted, “State action that punishes the publication of truthful information can rarely survive constitutional scrutiny.” Id. *20. The Virginia Supreme Court noted too as “unsupported by the evidence” VSB’s concerns that an “attorney repeating [truthful information made in a public judicial proceeding] could inhibit clients from freely communicating with their attorneys or…would undermine the public confidence in the legal profession”. Id. at *21.
Mr. Waterman uses VSB’s disclaimer on his website and his blog – indeed, was doing so before Hunter. He also gratuitously obtains client consent when undertaking legal representation, and likewise was doing so before Hunter.