In a nutshell, the respondent was an Illinois public defender with a client who was facing drug charges. The prosecutor in the case turned over a range of materials to the public defender, including a video supposedly depicting the client's role in a drug transaction. The lawyer thought it would be useful to get feedback on whether a jury would interpret the video as incriminating or exclupatory and asked the client whether the lawyer could show it to others for that purpose. The client agreed, but the lawyer went one step beyond what had been discussed: without the client's consent, the lawyer posted the video on YouTube and posted a link to the video on his Facebook page.
Not suprisingly, the Review Board for the Illinois Attorney Registration and Disciplinary Commission upheld a five month suspension of the lawyer. For the reasons set out in the report, this seems like a pretty clear cut violation of Rule 1.6.
The interesting question (for me, at least) is whether the lawyer would have had a viable First Amendment defense to the Rule 1.6 charge if this case had arisen in Virginia. Readers may recall the recent decision in Hunter v. Virginia State Bar, where the Virginia Supreme Court held that a lawyer has a First Amendment right to blog about clients' cases without their permission as long as the lawyer uses only information that was a matter of public record. (We discussed the case here and here.) So it seems to me that, if Hunter was correctly decided, the question in the Illinois case would be whether the video supplied by the prosecutor to the public defender was a matter of public record at the time the lawyer posted it. [Note: See Nicole Hyland's comment and my response below for why I am now persuaded that Hunter is probably distinguishable.]
Here are a few questions. First, was the video, in fact, a "public record" at the time of posting? From the report, it appears that the video had not been offered into evidence at any hearing. So does that mean it was not a public record? Or is it a public record merely because it is in a prosecutor's file? Put another way, does the public have access to records in a prosecutor's file? It seems to me that the answer turns on nuances of criminal procedure and the law on government records. Can anyone offer any insights as to the answer?
And second, assuming the video was a public record (i.e., the public could get access to it), does this mean that the discipline would have been unconstitutional if if had been meted out in Virginia, given the holding in Hunter?
And finally, if the answer to the second question is yes, doesn't this case reflect yet another troubling illustration of what was wrong with the Hunter decision?