A Virginia State Bar discipline committee rejected First Amendment defenses to find misconduct by a lawyer who wrote about his cases on the Internet without client consent and without a disclaimer saying case results may vary.
The eight-member VSB district committee ordered Horace F. Hunter of Richmond to yank from his firm’s website any case accounts for which the client did not agree to have the information posted. The panel also ordered Hunter to post a disclaimer that complies with the Rules of Professional Conduct to accompany any published case results. It issued a public admonition, the lowest level of public discipline available.
Hunter’s case had attracted attention among blogging lawyers, primarily for his stance that the mandated disclaimer was a violation of free speech rights. Hunter submitted a brief from First Amendment scholar Rodney A. Smolla, former Washington & Lee law dean and now president of Furman University. A VSB attorney argued Hunter’s descriptions of courtroom victories amounted to mere advertising not entitled to First Amendment protection.
Evidence at the panel hearing focused less on free speech issues and more on Hunter’s failure to obtain client consent before posting accounts of his trial triumphs. One post described how he won acquittal for a woman despite the fact that she had tested positive for cocaine use. A bar investigator testified the client was “very upset” to learn her case was described online.
The bar presented evidence of two other clients who claimed to be dismayed that their cases were described on Hunter’s website, even though both of them were acquitted of serious charges.
Using information about his own cases, even if it was all available in open court, violated Hunter’s duty of loyalty to his clients, argued Renu M. Brennan, assistant bar counsel. “This is a seminal obligation, a seminal duty to a client,” Brennan said.
Brennan argued that, regardless of public disclosures, a lawyer has to respect his client’s interest in avoiding further disclosure. “It doesn’t matter if it’s in the public domain. It doesn’t matter if that information was disclosed in a public trial,” Brennan told committee members.
Hunter argued Rule 1.6 of the Rules of Professional Conduct did not extend that far. As he viewed it, whatever happened in open court was fair game for public discussion. “I’m just strictly talking about the trial and what happened at the trial,” he said.
Hunter also rejected the VSB’s insistence that his blog could be considered advertising, triggering the need for a disclaimer.
“It cheapens the speech when I have to put in front of that – ‘This is for advertising purposes only,’” Hunter said.
Hunter pointed out his blog included his thoughts on national legal news stories as well as his own cases.
Adding his personal comments on issues helped to establish an identity for his firm, he said. “I want to stand for more than just representing people and taking their money,” he told the panel.
Hunter refused to concede his posts about case results were misleading. To find misconduct, the panel would first have to find the messages were “false or misleading or create unjustified expectations about results,” argued Richmond’s Michael L. Rigsby on Hunter’s behalf.
Brennan argued any discussion of case results is inherently misleading because it cannot include all the relevant evidence and cannot be used to predict future outcomes. The VSB’s mandated disclaimer, she said, “does not offend a free speech standard.”
The discipline panel agreed with the bar on both the client consent and disclaimer issues. “The inclusion of a disclaimer is a minimal requirement,” the committee found, in a decision read by chair Tony H. Pham.
After the committee returned its findings of misconduct, the VSB lawyer argued for only the minimum sanction. The committee again agreed, deciding on an admonition with terms. Within 30 days, Hunter must remove from his website any personal case accounts to which the client did not consent and include disclaimers for any published case accounts. The disclaimers, Pham said, must comply with Rules 7.1 and 7.2 of the Rules of Professional Conduct.
Hunter said he was pleased with the process, but he plans to appeal the committee’s findings.