Lawyer blogs, public facts, and confidentiality (or, that blogging criminal defense lawyer from Virginia won on First Amendment grounds)

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.

I think the opinion is absolutely wrong, John. I think the state constitutionally can forbid attorneys from violating the traditional (and even quite broad) duty of confidentiality. This is the whole point to my access-to-justice approach to the First Amendment (45 U.C Davis L. Rev. 27). Traditional First Amendment doctrines fail to illuminate what attorney speech must be protected (such as speech essential to providing legal advice to clients or to invoke the law on behalf of clients, and overarchingly, speech necessary to invoke or avoid government power in the protection of client life, liberty, and property), and, conversely, the traditional doctrines do not illuminate what attorney speech constitutionally can and should be prohibited.

As you know, my view is that the First Amendment as applied to attorney speech must be keyed to the attorney's role in the system of justice in protecting client life, liberty, and property (or depriving others of life, liberty, or property—for example, a prosecutor). Thus restrictions on speech essential to that role are constitutional under my theory—and confidentiality would be a prime example. Attorneys have access to client information solely because of the delegation of state power to them to practice law, to discover the most embarrassing and terrible information possible about people. That information is provided to the attorney for the express purpose that the attorney will be able to use the information to invoke and/or avoid government power on behalf of that person. As an essential component of the role of the lawyer, Virginia and other states can constitutionally prohibit attorneys from disclosing information about their clients outside of what is necessary for this role, unless the client consents.

As a matter of First Amendment theory, these ideas are reflected in the work of Alexander Meiklejohn and Wittgenstein. Wittgenstein argues generally that speech protection must be keyed to the "form of life" in which it exists. Thus, as applied to the system of justice, speech regulation and protection must preserve that form of life—and here, our system of justice as a “form of life” requires confidentiality. Alexander Meiklejohn uses the town meeting as an example. Although political speech is absolutely protected in town meetings, yet it is and must be abridged (for example, through rules and regulations about who speaks when, and order by the chair, etc.). The abridgment is necessary to accomplish the governmental purpose—that is, the purpose of holding the town meeting. While manipulation of the process cannot be allowed through abridging just one side of an issue, for example, abridgment through creating rules of the game is essential to preserve the process itself.

In like manner, there are many restrictions on attorney speech that are essential to the proper functioning of the attorney’s role in the system of justice and as an advocate for her client. These regulations are constitutional precisely because they make it possible for the speech essential to our system of justice to take place. Without confidentiality, clients don’t talk, a lawyer’s knowledge in pursuing legal remedies becomes limited, and, more importantly, state powers and processes to discover information through the justice system can be used by attorneys (who are licensed with state power to discover such information for these very purposes) to instead embarrass and undermine clients—and perhaps even harm their reputation and property. As you know, there are plenty of regulations on attorney speech that I think are unconstitutional under the First Amendment and that I have written about. But confidentiality is not unconstitutional; instead, it is an essential aspect of the attorney’s role in our system of justice.

Comments

[Andrew Perlman]

I agree with you, John, that this opinion suggests that Rule 1.6 must be interpreted much more narrowly than many of us currently assume. A couple of examples illustrate why the opinion is so surprising and troubling.

Let's say that I represented someone who was convicted of buying illicit drugs, hiring a prostitute, or doing something even more embarrassing 10 years ago. Let's also imagine that the person has become fairly well known in the community, and people don't remember that the person has these embarrassing legal issues in his past. Does the court's opinion mean that I have a First Amendment right (as this person's former lawyer) to say the following on my blog? "Hey, so-and-so has come a long way. Did you know I represented so-and-so 10 years ago when he was convicted of hiring a prostitute/buying crack cocaine, etc.?"

Now consider a second example, which suggests that the opinion may also have implications for other professionals (e.g., doctors). Imagine that a litigant reveals health-related information as part of a case. Maybe it's sensitive health information to support a loss of consortium claim. Or perhaps it's mental health information that comes out in the course of a child custody dispute. Does the court's opinion mean that the litigant's doctors would then have a First Amendment right to blog about the patient's health information (even using the person's name) because the information had become a matter of public record? I can't see why a doctor's First Amendment rights should be any less robust than a lawyer's in this regard, can you?

Am I misreading the implications of the court's opinion for these two examples? Like you, John, I'm not a First Amendment expert, but this opinion certainly seems inconsistent with widely understood conceptions of confidentiality in law and medicine.

[John Steele]

Andy, yes, I agree with your criticisms. The language in the opinion "fits" so poorly with lots of other legal principles in the law governing lawyers that I wonder if the holding can be sustained. About nine months from now I will doing lots of ethics CLE. I won't be happy if I am reporting to the lawyers that in Virginia (and perhaps elsewhere) the duty of confidentiality is void as to non-privileged communications in the context of completed matters.

[Stephen Gillers]

In some jurisdictions, there is a tort of privacy invasion that will allow civil damages for public revelation of true facts, even if the facts could be found with persistence in a court file somewhere. But the tort is very hard to prove. It doesn't sound like it would exist here. The revelation has to be highly offensive and there must be no legitimate public interest.

If we posit that the facts are incontestable, and currently out there so the lawyer is not reviving memories, then the case may be right. But it may be that the facts are not incontestable or that the sources revealing them are not entirely credible or aren't certain. Then the lawyer's revelation adds to their credibility or highlights them and hurts the client.

[John Steele]

As I understand this case, Steve, the posts deal with ordinary criminal matters, it seems to me that the lawyer's blog exposes the matters to an audience that wasn't aware of them -- which I don't like.

[Margaret Tarkington]

I think the opinion is absolutely wrong, John. I think the state constitutionally can forbid attorneys from violating the traditional (and even quite broad) duty of confidentiality. This is the whole point to my access-to-justice approach to the First Amendment (45 U.C Davis L. Rev. 27). Traditional First Amendment doctrines fail to illuminate what attorney speech must be protected (such as speech essential to providing legal advice to clients or to invoke the law on behalf of clients, and overarchingly, speech necessary to invoke or avoid government power in the protection of client life, liberty, and property), and, conversely, the traditional doctrines do not illuminate what attorney speech constitutionally can and should be prohibited.

As you know, my view is that the First Amendment as applied to attorney speech must be keyed to the attorney's role in the system of justice in protecting client life, liberty, and property (or depriving others of life, liberty, or property—for example, a prosecutor). Thus restrictions on speech essential to that role are constitutional under my theory—and confidentiality would be a prime example. Attorneys have access to client information solely because of the delegation of state power to them to practice law, to discover the most embarrassing and terrible information possible about people. That information is provided to the attorney for the express purpose that the attorney will be able to use the information to invoke and/or avoid government power on behalf of that person. As an essential component of the role of the lawyer, Virginia and other states can constitutionally prohibit attorneys from disclosing information about their clients outside of what is necessary for this role, unless the client consents.

As a matter of First Amendment theory, these ideas are reflected in the work of Alexander Meiklejohn and Wittgenstein. Wittgenstein argues generally that speech protection must be keyed to the "form of life" in which it exists. Thus, as applied to the system of justice, speech regulation and protection must preserve that form of life—and here, our system of justice as a “form of life” requires confidentiality. Alexander Meiklejohn uses the town meeting as an example. Although political speech is absolutely protected in town meetings, yet it is and must be abridged (for example, through rules and regulations about who speaks when, and order by the chair, etc.). The abridgment is necessary to accomplish the governmental purpose—that is, the purpose of holding the town meeting. While manipulation of the process cannot be allowed through abridging just one side of an issue, for example, abridgment through creating rules of the game is essential to preserve the process itself.

In like manner, there are many restrictions on attorney speech that are essential to the proper functioning of the attorney’s role in the system of justice and as an advocate for her client. These regulations are constitutional precisely because they make it possible for the speech essential to our system of justice to take place. Without confidentiality, clients don’t talk, a lawyer’s knowledge in pursuing legal remedies becomes limited, and, more importantly, state powers and processes to discover information through the justice system can be used by attorneys (who are licensed with state power to discover such information for these very purposes) to instead embarrass and undermine clients—and perhaps even harm their reputation and property. As you know, there are plenty of regulations on attorney speech that I think are unconstitutional under the First Amendment and that I have written about. But confidentiality is not unconstitutional; instead, it is an essential aspect of the attorney’s role in our system of justice.

[John Steele]

By the way, and fwiw, Margaret Tarkington's recent article on Freedom of Attorney-Client Association was my favorite law review article in our field in 2012 because in my view it based the analysis on a deep understanding of the role that lawyers play in society. Margaret has written several articles on lawyers and first amendment issues.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2018066

[Joshuamking]

I don't see how the court could have ruled differently. There's no compelling government interest in restricting lawyer speech about the public aspects of completed matters. And while Hunter is not exactly the poster child for lawyerly discretion, I'm far more concerned about state bar regulators (who don't exactly have a stellar track record when it comes to respect for the first amendment) unduly restricting the free speech rights of attorneys.

[John Steele]

Joshua, thanks. I need to review the case law on professional speech, but here's my intuition. Confidentiality and no disparagement clauses are valid contract provisions that can be enforced through legal means even when the clause covers some matter known to persons in the public. The law of lawyering deals with a fiduciary relationship where everything the lawyer receives is held in trust for the client. The confidentiality rule seems on an ever stronger footing than the enforceability of NDAs and non-disparagement clauses in private contracts. I see the state bar as standing in the shoes of the client and holding the lawyer to the promise he/she makes as agent to the principal. Seems compelling to me, but I guess some people disagree!

[Joshuamking]

John, the problem with the NDA/non-disparagement comparison is that it breaks down as soon as you insert state action into the equation. There's a massive difference between private contractual limitations on speech and state-enforced limitations (starting with the fact that the first amendment doesn't apply to the former).

[John Steele]

So, Joshua, are you saying that it's constitutional to have a system where clients can sue lawyers for disclosing non-privileged confidences?

[Joshuamking]

Yes, if the lawyer was contractually obligated to the client to not disclose those non-privileged confidences.

But I'm not exactly sure what that "non-privileged confidence" means - I would think that, except in edge cases, any confidential information disclosed by the client would also be privileged. And regardless, the state can constitutionally regulate disclosure by attorneys of confidential client information. But we're talking about disclosure of public information here.

[Joshuamking]

And I thought this was such an open-and-shut issue; I've been far more focused on the Bar's requirement that Hunter post a disclaimer on his "blog." In my mind that was a much closer call: http://lawyernomics.avvo.com/blogging-2/court-sides-with-bar-on-need-for-blog-disclaimer.html

[Dennis Rendleman]

Two additional factors for consideration: 1. The Virginia Rule is basically the old confidences and secrets configuration and, with a Court in and a/c privilege mindset the notion of disciplining a lawyer for publishing something from the public record that a newspaper could publish has seems counter-intuitive; 2. I'm not sure I would equate failure to uphold discipline in this case with freedom to disclose information in every case. Nevertheless, I personally think it is a wrongheaded decision.