Many of us have been following the case of Horace Frazier Hunter, the criminal defense lawyer in Virginia who blogged about his cases without client consent and without a disclaimer about outcomes and guarantees. The State Bar successfully disciplined the lawyer but he appealed on First Amendment grounds and has achieved some success in that appeal (opinion here). The court framed the issues as:
In this appeal of right by an attorney from a Virginia tate Bar (“VSB”) disciplinary proceeding before a three judge panel appointed pursuant to Code section 54.1-3935, we consider whether an attorney’s blog posts are commercial speech, whether an attorney may discuss public information related to a client without the client’s consent, and whether the panel ordered the attorney to post a disclaimer that is insufficient under Rule7.2(a)(3) of the Virginia Rules of Professional Conduct.
The court held that the blog was commercial speech and that the regulations requiring a disclaimer about guarantees and outcomes were consitutional. No surprises there.
Then the court had to decide if the bar could prohibit lawyers from discussing public facts that are potentially embarrassing or detrimental to the client. Here's the interesting part: "Thus, we are called upon to answer whether the state may prohibit an attorney from discussing information about a client or former client that is not protected by attorney-client privilege without express consent from that client. We agree with Hunter that it may not." That's contrary to a lot of settled expectations, isn't it?
Further: "The VSB argues that it can prohibit an attorney from repeating truthful information made in a public judicial proceeding even though others can disseminate this information because an attorney repeating it could inhibit clients from freely communicating with their attorneys or because it would undermine public confidence in the legal profession. Such concerns,however, are unsupported by the evidence. To the extent that the information is aired in a public forum, privacy considerations must yield to First Amendment protections. In that respect, a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom. Thus, the circuit court did not err in concluding that the VSB’s interpretation of Rule 1.6 violated the First Amendment."
What do you all think about that holding? I don't like it, but have to admit that I'm not deeply versed on the law of the First Amendment's application to attorney speech. It seem to me that it even if the facts are public, it especially hurts to have the client's own agent repeat them. It also makes me wonder about any continuing duty of loyalty that might be tied to the subject matter of the representation, as in the Oasis West Realty case. The holding doesn't just lack a "fit" with the law of lawyering; it would seem to undo many important principles in that law. For example, everything the client gives us (including information) is held in trust for the benefit of the client. Why can I use what's been entrusted to me to embarrass my own client?
[I've edited this a little bit and may continue to do so.]
UPDATE: in the comments, Margaret Tarkington offers these thoughts.