[Note: The following post originally appeared on February 21st. I took it down in light of Mike Frisch's observation in the comments section that the post might contain information considered to be confidential under the D.C. Bar's Disciplinary Rules. After conducting additional research and consulting with additional sources, I concluded that any attempt by the D.C. Bar to apply its confidentiality provisions to this post or to seek to discipline Professor Jason Huber (who supplied me with the information) would violate the First Amendment. Professor Huber agreed with this assessment and has given me permission to re-publish this post. I concluded that it would be useful to do so because the dismissals offer useful guidance on the scope of Rule 7.1 in a digital age.]
As some readers may recall, several Crowell & Moring lawyers were hit with disciplinary complaints back in 2011 because of a critique they posted on the firm's website. The critique analyzed a scientific study that suggested that birth defects in West Virginia were higher than elsewhere because of mining operations in the state. The lawyers contended that the study failed to take into account other possible causes of the birth defects, such as consanguinity (inbreeding). To the lawyers' (and firm's) embarrassment, consanguinity is no more common in West Virginia than anywhere else, so the firm quickly removed the critique. Despite the quick retraction, Charlotte Law School Professor Jason Huber filed a disciplinary complaint against the responsible lawyers, alleging violations of Rules 7.1 and 8.4.
That's as much I knew about the matter until the other day. As I was preparing for a presentation on legal ethics and social media, I decided to find out what ultimately happened to the complaints. I reached out to Professor Huber, who was kind enough to send (and allow me to publish) the letters he received from the D.C. and West Virginia disciplinary authorities. You'll see the complaints in both jurisdictions were dismissed -- in D.C., the complaint was dismissed on the merits; and in West Virginia, it was dismissed because of a lack of jurisdiction, but with some useful dicta on the scope of Rule 7.1 and a "reminder" to the lawyers to avoid "gross stereotypes."
For the reasons I mentioned in my earlier post, I think bar counsel in both states got this right, particularly in concluding that the communications at issue did not "concern a lawyer or the lawyer's services" for purposes of Rule 7.1.