The Virginia State Bar can continue to enforce a disclaimer requirement for lawyers who brag about their case results, but lawyers are free to disclose embarrassing facts about clients as long as the information came out in open court.
That’s the outcome of the decision Monday by the U.S. Supreme Court not to hear an appeal by Richmond lawyer Horace Hunter, who challenged a ruling requiring him to post disclaimers about case results he discussed on his law firm blog.
The high court’s denial of Hunter’s appeal leaves intact a state court decision requiring disclaimers but allowing Hunter to discuss details of his court cases without getting permission from his clients, a decision opposed by the VSB.
The Supreme Court of Virginia ruled in February that VSB-required disclaimers about case results did not violate the First Amendment because they served to protect the public from potentially misleading lawyer advertising.
But the Virginia court also curbed the VSB’s effort to block lawyers from publishing information adverse to their clients, even though the information – openly revealed in court – could be published by the public or news media.
“To the extent that the information is aired in a public forum, privacy considerations must yield to First Amendment protections,” wrote Justice Cleo E. Powell for the court.
That ruling – now allowed to stand – could have national implications, said Constitutional law scholar Rodney A. Smolla, who represented Hunter.
Smolla said he attended an American Bar Association meeting in Texas where many experts in professional regulation and state bar regulators attended. The group was “very intensely engaged” in the issue involving Virginia Rule of Professional Conduct 1.6, which generally bars disclosure of embarrassing client information.
“My sense is the Virginia rule, on its face, is reasonably close to what you see in a number of other states,” Smolla said. He saw the U.S. Supreme Court appeal denial as “placing stress” on those restrictions on lawyers’ speech.
Smolla said Hunter would not be requesting rehearing of the high court action, so the Virginia court’s decision now stands as the final word on Hunter’s case.
“Obviously, I’m disappointed,” Hunter said. In light of lawyers’ increasing use of social media and other advertising venues, Hunter said he had hoped the disclaimer issue would have provided an interesting study for the high court.
VSB Counsel Edward L. Davis declined comment except to note that the requirement for an attorney to post disclaimers when advertising cumulative case results, as set forth in Rule 7.2 (a) (3) of the Rules of Professional Conduct (Rule 7.1 (b) as of July 1), remains the law in Virginia.
Update: This item was updated June 24 to include comments from Smolla and Davis. It was updated on June 26 to add comment from Hunter.