We previously posted about the Virginia disciplinary case against Horace Frazier Hunter, a criminal defense lawyer who blogged about his cases and used his clients' actual names without consent. When the case reached the Supreme Court of Virginia, it held that, under the First Amendment, Hunter could not be disciplined for revealing public facts. The holding remains controversial in legal ethics circles.
In his latest column, Richard Zitrin offers these critical thoughts about the case:
The Supreme Court of Va misunderstood its own confidentiality rule in Hunter v. State Bar, granting a lawyer unlimited first amendment freedom of speech to a former client's detriment.
The Virginia State Bar was right in disciplining Hunter for violating his duty of confidentiality to his clients, even though he disclosed the information only after the cases were over. The duty is to protect not just direct communications but "secrets." Those "secrets" include anything embarrassing or likely to be detrimental to the client. The fact that the information is available to the public doesn't mean it is known by the public. And it is there that an attorney's duty lies and continues, both before and after the end of the case. When the high court overturned the bar, it misapplied its own rule.