Every so often an ethics case comes along that has the potential for far-reaching ramifications. Hunter v. Virginia State Bar is one. It could mean lawyers can wilfully disseminate client information for their own gain without violating client confidentiality rules, but also that lawyers cannot blog about their practices and their successes without disclaimers. The legal ethics world is abuzz with what Hunter will mean across the country.
Who Is Mr. Hunter?
Horace Hunter is a trial lawyer and active blogger. His blog includes posts about the cases he has won, and some of these posts divulge details about his clients. The details have also been disclosed in publicly-available court records, though the court records are far less accessible than Mr. Hunter’s blog. At the time the Virginia State Bar took issue with Mr. Hunter’s blog, it bore no disclaimers applicable to attorney advertising in Virginia.
Virginia’s Case Against Mr. Hunter
The Virginia State Bar investigated Mr. Hunter because of his blog. It found that he had violated both client confidentiality rules and attorney advertising rules. (For those of you following the individual rules, Virginia’s ethics rules mirror the Model Rules, and Mr. Hunter was found to have violated Rules 1.6, 7.1 and 7.2.)
Mr. Hunter fought the Virginia Bar’s charges up to the Virginia Supreme Court. The clearly contentious case split the Court. As to divulging client confidences, the majority of the Court held that the First Amendment protects an attorney who disseminates information about a client, even where as here Mr. Hunter identified the clients by name, when the information has already been divulged publicly, including in court proceedings. The Court held that the attorney is just as protected as a member of the public or media would be in repeating information revealed in court. It makes no difference if that information is embarrassing or detrimental to the client.
As to attorney advertising, the Court held that the blog is mixed commercial and political speech not entitled to First Amendment protection, and that because case-related blog posts were inherently misleading, Mr. Hunter must post disclaimers which comply with Virginia’s advertising rules on each of the case-related posts.
Attorneys Can Actually Embarrass Clients By Name And Be Protected
Perhaps the most shocking part of the Hunter case is the Virginia Supreme Court’s holding that attorneys can embarrass clients – and by name! – and be protected by the First Amendment. Without arguing the Constitutional side of the issue, from an ethics perspective it seems completely inconsistent with attorneys’ duties of loyalty and confidence. An attorney cannot take a position inconsistent to a client’s position without violating his duty of loyalty, but he can go online and embarrass his client so long as the information has previously been divulged?
I am not alone in finding this holding incongruous with the profession and our duties to clients. Discussions of Hunter have included posing the question of whether the case could be logically extrapolated to doctors, allowing them to divulge a patient’s sensitive medical information so long as that information had been disclosed in court proceedings of some kind, such as in personal injury litigation. Legal Ethics Forum set out one answer, which was “yes” from Furman University President Rodney Smolla. The potential for far-reaching implications is exactly why this case is so critical. If this holding is widely accepted, what does it do to confidence in the profession?
(One limitation in the Virginia ruling is that the Court points out that the cases about which Mr. Hunter blogs are completed matters. At least they are not ongoing, but I think he would lose any client he was actively work with upon the posting of the blog. Still, it seems like it would be very bad for business to be known as the lawyer who is likely to divulge information about clients online.)
Disclaimers Actually Matter
In an earlier post, I questioned whether our disclaimers in email signatures, blogs and websites, are actually effective or just mindless verbiage. Virginia answered this question to a certain extent in its Hunter holding, where it stated that without a disclaimer, Mr. Hunter’s case-related blog posts are inherently misleading. The Court actually remanded the case to have an order issued imposing disclaimers that specifically complied with Virginia’s advertising rules; so yes, to answer the earlier post’s somewhat rhetorical question, disclaimers do matter.
In an interesting twist to the case, in the negotiations with the Virginia State Bar to resolve its issues with the blog, Mr. Hunter offered to post a disclaimer. Negotiations apparently stalled and he did not post it at that time. My question is, why not? Perhaps Mr. Hunter was concerned that posting the disclaimer before settlement of the matter would be viewed as an admission that the disclaimer was necessary and thus had been lacking. Or, perhaps he felt that the disclaimer would reduce the effectiveness of the blog. Either way, it again shows that disclaimers do indeed matter.
Virginia As Leader Or Anomaly?
Time will tell whether Hunter will be followed in other states or stand on its own as an outlier. The blog-as-advertising issue is most likely to come up in other states, with the proliferation of attorney blogging. The client confidentiality issue is the one most scholars will be most interested to follow, though it will take another lawyer like Mr. Hunter actually discussing client information to trigger a similar case in another state.