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.