In February, we had a useful discussion about the Virginia Supreme Court's decision in Hunter v. Virginia State Bar. In one part of Hunter (see page 18), the Court held that lawyers have a First Amendment right to reveal and publicly discuss confidential, even embarrassing, information about a client without the client's consent as long as the information can be found in the records of a completed public court proceeding. As John Steele notes below, the decision is controversial among legal ethicists. (John also links to Richard Zitrin's criticisms of the case here.)
At the recent ABA National Conference on Professional Responsibility, one of the panels focused on the Hunter case. I think it's fair to say that many members of the the audience were somewhat critical of the Court's decision. Many of us thought that we would have to rethink the scope of a lawyer's duty of confidentiality if the case's reasoning is widely followed. Indeed, I suspect most legal ethicists believe that, without client consent [edit: or another applicable exception], Rule 1.6 prohibits lawyers from disclosing embarrassing information, even if the information can be found in the public records of a completed court proceeding.
Notably, one of the panelists was Hunter's lawyer, Furman University President Rodney Smolla [edit: correction to President Smolla's first name]. I asked President Smolla a question similar to the one I posed in this comment. Namely, does the Hunter decision mean that a doctor now has a First Amendment right to blog about a patient's medical information as long as that information can be found somewhere in the public records of a completed court proceeding (e.g., a tort case involving personal injuries)? President Smolla tentatively answered yes. He seemed to say that, if Hunter is correctly decided, existing federal regulations might indeed be unconstitutional as applied to doctors' speech, at least insofar as they prohibit doctors from discussing information that can be found in public records.
This answer seemed both remarkably candid as well as potentially troubling. I'm not a constitutional law scholar, so I'm not in a good position to assess the Court's constitutional analysis. But given the potential implications of this decision for a lawyer's duty of confidentiality, and perhaps related implications for the confidentiality obligations of other professionals, this case seems like a good one for United States Supreme Court review. Jim McCauley of the Virginia State Bar, who was on the same panel as President Smolla, noted that the Virginia solicitor general is currently considering whether to ask the United States Supreme Court to hear the case. I hope the solicitor general decides to do so.