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Ethics charges are filed over blog

Richmond lawyer Horace F. Hunter faces a June 10 disciplinary hearing before the Virginia State Bar on a charge that a blog on his law firm website does not carry a disclaimer.

Hunter says the VSB’s demand for a disclaimer violates his First Amendment rights. He sued the VSB in federal court under 42 U.S.C. § 1983, but earlier this month Richmond U.S. District Judge John A. Gibney dismissed Hunter’s suit to halt the hearing.

Like many lawyers, Hunter uses his blog to promote his expertise in a particular practice area. He says in his suit that the VSB can’t force him to add content to his blog in the form of a disclaimer.

A recent post on Hunter’s trademarked “This Week in Richmond Criminal Defense” describes the Supreme Court of Virginia’s reversal in January of the conviction of William Bottoms on a charge of construction fraud. The high court said Bottoms should have been allowed to withdraw his guilty plea. Bottoms’ lawyer on appeal? Horace F. Hunter, president of the law firm of Hunter & Lipton.

According to Gibney’s May 9 opinion in Hunter v. VSB (VLW 011-3-265), dismissing Hunter’s suit against the VSB, many, but not all, of the entries on “This Week in Richmond Criminal Defense” “herald Hunter’s courtroom successes and identify him as the winning attorney.”

The blog on the Bottoms case is political speech, Hunter said last week. It describes a case and provides critical commentary on the failure of the trial court and the Virginia Court of Appeals to correctly address what he asserts was a straightforward legal issue.

Hunter said his research did not disclose any case in which an appellate court had addressed squarely the subject of blogs in the context of lawyer advertising. He said he handled the federal suit on his own but is looking to hire an attorney to represent him in the disciplinary proceeding.

Last July, the bar notified Hunter he needed a disclaimer to advise potential criminal defendants and clients that results in their cases could vary, depending on the facts of each case.

According to Hunter and the “Charge of Misconduct” the bar filed on March 11, he countered with a proposed disclaimer:

“This Week in Richmond Criminal Defense is not an advertisement, it is a blog. The views and opinions expressed on this blog are solely those of attorney Horace F. Hunter. The purpose of these articles is to inform the public regarding various issues involving the criminal justice system and should not be construed to suggest a similar outcome in any other case.”

Hunter said the VSB offered to allow him to use his disclaimer and to resolve the case with a finding of a de minimis violation of the ethical rules.

Instead, Hunter sued, naming the Virginia State Bar, Executive Director Karen Gould and bar prosecutor Renu Brennan as defendants. Hunter asked for an injunction, $25,000 in compensatory damages and $50,000 in punitive damages.

Gibney dismissed the entire suit without getting to Hunter’s First Amendment argument. He said the VSB is protected under the 11th Amendment and that Gould and Brennan, sued in their official capacities, cannot be liable for money damages. Brennan, as assistant bar counsel, has absolute prosecutorial immunity.

Finally, Gibney abstained under the Younger v. Harris policy against federal court intervention in ongoing state judicial proceedings.

Hunter will get a chance to raise his First Amendment challenges in the bar disciplinary hearing, Gibney said.

The VSB complaint alleges an ethical violation not mentioned in the lawsuit. It says Hunter’s website “discusses information regarding his clients’ cases, the disclosure of which would be embarrassing or likely detrimental to the client,” without obtaining the client’s consent to disclose the information.

Hunter said he believes the alleged violation also has First Amendment implications. The information and comment in the blogs is based on public information from a trial and not on any communication he had with a client.

Although he said he could not discuss specific cases, VSB Ethics Counsel James McCauley said his office often resolves informally complaints about a violation of the advertising rules. His office frequently makes suggestions about language that would make an assertion in a lawyer’s advertising comply with the rules, he said.

“We rarely have a lawyer who wants to cross swords or do battle over our interpretation of the advertising rules,” he added.

On the other hand, “If a lawyer is rightfully recalcitrant and persuades us that we’re in error, we drop the matter in its entirety.”

VLW 011-3-265

Virginia Lawyers Weekly
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