A February 28, 2013 decision issued by the Virginia Supreme Court, which arose out of a disciplinary action instituted by the Virginia State Bar, contains a groundbreaking discussion of the application of First Amendment protections to attorney-generated blogs.

Horace Hunter, an attorney with the Richmond firm Hunter & Lipton, authors the blog in question, “This Week in Richmond Criminal Defense.”

At the time of the state bar’s disciplinary hearing, the blog included 30 posts written by Hunter, 25 of which discussed cases and were scrutinized in this matter.  Of the 25 posts:

  • 22 discussed cases in which Hunter represented either a criminal defendant or a plaintiff in a wrongful death action.
  • Hunter referred to his law firm in 19 posts.
  • Most posts relayed some measure of victory for Hunter and his firm.
  • No post contained a disclaimer stating that the results discussed did not guarantee or predict similar results in future cases.

The Virginia State Bar found that Hunter’s posts violated a Virginia rule that prohibits a lawyer from disclosing public information that is embarrassing or likely to be detrimental to the client.

Hunter appealed to a three-judge panel of the circuit court, which found that the state bar’s interpretation of this rule violated Hunter’s First Amendment rights.

The Virginia Supreme Court unanimously agreed.  It found that while attorney speech about public information from cases may be regulated if there is a substantial likelihood it could materially prejudice a pending case, Hunter’s posts discussed information made public in now-concluded cases.  Under such circumstances, the court found, “a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom.”

The majority also found, however, that Hunter’s blog was essentially commercial, not political speech, and constituted advertising.  To find this the majority analyzed the characteristics of the blog as a whole.  For instance:

  • Hunter’s motivation for the blog was at least in part economic;
  • The posts mainly described cases in which Hunter achieved a favorable result;
  • The posts clearly reference a specific product, in this case Hunter’s skills as an attorney;
  • The blog identifies Hunter’s firm in 19 posts;
  • The blog is accessible through Hunter’s firm’s site;
  • The blog uses the same frame as for soliciting clients, which includes the firm name, a photo of Hunter and his law partner, and a “Contact Us” form; and
  • The blog is non-interactive—i.e. it does not allow readers to engage in discourse through comments.

Although Hunter’s blog does include some policy discussion that could easily be characterized as political speech, the majority concluded that the blog as a whole is economically motivated and “overtly proposes a commercial transaction that is an advertisement of a specific product.”

The decision went on to hold that because Hunter’s blog falls in the category of commercial speech, under existing First Amendment jurisprudence, the blog is subject to regulations that directly advance a substantial government interest and are no more restrictive than necessary to serve that interest.

The majority found that Virginia has a substantial interest in protecting the public from an attorney’s self-promoting and potentially misleading statements, and that the relevant rules of professional conduct directly advance this interest.  The Virginia state bar rules—which require an appropriate disclaimer in each individual case-related post (as opposed to only a single time, for example, on the home page of the blog)—were found to be no more restrictive than necessary.  This would, the majority stated, protect blog readers who may bypass the blog’s home page by typing a post’s specific URL directly into the address bar.  As such, the majority found the relevant rules to be constitutional, both facially and as applied to Hunter’s conduct.

Hunter’s attorney has indicated he will petition the U.S. Supreme Court for review of the determination that the blog constitutes commercial speech.  Another possible issue for review is whether Virginia’s disclaimer requirements are no more restrictive than necessary.

If the Supreme Court takes up the case, it would present an opportunity to clarify the extent to which existing First Amendment protections apply to the legal profession.

In the meantime, attorney-bloggers who wish to discuss their cases, including concluded suits and public decisions, would do well to:

  • Consider the factors relied upon by the Hunter majority in its commercial versus political speech analysis;
  • Use appropriate disclaimers; and
  • Of course, review their states’ ethics rules on attorney advertising.