Ethical Lawyer Blogging in Virginia

A three-judge panel in Virginia has issued its decision in an important case for lawyers who blog or who are thinking of starting a blog. The case involved the appeal of a ruling by Virginia State Bar Association’s disciplinary committee about a blog written by Virginia lawyer Horace Hunter. The committee originally pursued a complaint against Mr. Hunter when he refused to include the exact disclaimer required by the Bar Association.

I was lucky enough to appear on an all-star panel of speakers, including Mr. Hunter, a few months ago, when we presented a CLE hosted by the ABA, titled, Is Your Legal Blog Compliant? To learn more about the specific facts leading to the complaint, I’d strongly recommend the episode of the Legal Talk Network podcast, Lawyer 2 Lawyer, on which Mr. Hunter was a guest.

There were two issues before the panel. First, whether Mr. Hunter had breached his duty of confidentiality pursuant to Rule 1.6 by writing about his clients’ cases on his blog. The information contained in the blog posts was publicly available. The panel overturned the finding of misconduct by the State Bar’s disciplinary committee.

Second, the panel was presented with the question of whether Mr. Hunter could be required by the State Bar to include a disclaimer on his blog. The panel upheld the committee’s determination that a disclaimer was required in accordance with the attorney advertising rules set forth in Rules 7.1 and 7.2. Specifically, the disclaimer must state that results may vary from case to case, depending on the facts.

All lawyers–even those who do not blog–should look more closely at this decision and at the facts and arguments leading to this point. Mr. Hunter’s arguments regarding the First Amendment implications of attorney advertising, particularly in the context of legal blogs.

See also, VA Lawyers’ Weekly; Washington Post’s Capital Business Blog; and Above The Law.

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