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Court-ordered disclaimer on blog not enough

A lawyer’s single disclaimer on his website was not enough to warn potential clients that they might not see the same successful results in their criminal cases as the lawyer touted in his blog posts, the Supreme Court of Virginia said today in Hunter v. Virginia State Bar.

The VSB wanted Richmond lawyer Horace Hunter to post a specific disclaimer with each blog post he wrote. The three-judge panel that heard his case dictated a different disclaimer, to be posted once.

The circuit court erred by imposing a disclaimer that conflicted with the rule, wrote Justice Cleo E. Powell for a divided court.

While the substantive meaning of the court-ordered disclaimer may meet Rule 7.2(a)(3)’s requirements, “it nevertheless is less than what the rule requires,” Powell said. The court said Hunter did not argue the disclaimer language ordered by the circuit court panel was appropriate, and “we decline to so hold.”

The court held that the disclaimers required by the VSB are “not more extensive than is necessary” to serve the VSB’s governmental interest.

Hunter’s blog included a mix of political and commercial speech, the court said, but his posts about his criminal cases were not “inherently misleading.” However, the potential for prospective clients to be misled warranted requiring disclaimers.

Even if the blog mixed political and commercial speech, the inclusion of political speech did not immunize the blog from regulation by the VSB, the court said. Calling the blog political speech was akin to arguing that opening a sales presentation with a prayer transformed the presentation into religious speech, Powell said.

Two justices dissented and said the state could not regulate Hunter’s blog by forcing him to post the VSB’s preferred disclaimer.

Hunter won on his right to discuss specific case results that are part of the public record. The court rejected the VSB’s interpretation of Rule 1.6 to bar Hunter from discussing details of his cases that are already public.

Powell said the state may not regulate an attorney’s speech about his case results, unless the information is privileged or could prejudice a pending case. The VSB conceded that the information in Hunter’s blog posts was public information that would have been protected had the news media or others disseminated it.

“State action that punishes the publication of truthful information can rarely survive constitutional scrutiny,” Powell wrote.

Justice Donald W. Lemons and Justice Elizabeth A. McClanahan dissented in part, saying they would hold that “Hunter’s speech is political, is entitled to the heightened scrutiny test, and that he cannot be forced to include the advertising disclaimer under Rule 7.1 that the Bar seeks to force upon his writings.”

Responding by email, bar counsel Edward L. Davis said the court’s opinion “provides a fair and clear assessment of the facts and applicable law relating to lawyer advertising.”

In a separate email, VSB Ethics Counsel James M. McCauley said the court’s decision demonstrates that lawyer advertising on blogs is no different from lawyer advertising anywhere else – that medium doesn’t matter. Lawyers that use blogs should read the discussion of how blogs may be regulated under a commercial speech standard as opposed to a strict scrutiny standard for political speech. The specific placement, type face, background and font size requirements in the rule must be met.

Hunter plans to seek review by the U.S. Supreme Court, according to his lawyer, Rodney A. Smolla. He said the case presents an important issue in terms of the extent that the First Amendment applies to the legal profession.

UPDATE: The original post has been updated with comments from VSB representatives. It was updated again March 4 to add comments from Rodney Smolla.
–Deborah Elkins

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