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Free speech and legal blogsVirginia State Bar’s misconduct charge against a lawyer raises the question

By Geri L. Dreiling, Esq.

Where does the line between lawyer advertising and free speech exist? A recent misconduct charge leveled by the Virginia State Bar against a criminal lawyer who used his blog to highlight his cases is shining a spotlight on the question.

As reported by the Washington Post, Richmond criminal defense attorney Horace Hunter writes the blog, “This week in Richmond criminal defense.” In it, he discusses local and national cases including some of his own. The Virginia State Bar, in what seems to be the first misconduct charge of its kind in the state, claims he ran afoul of the professional rules by not including an advertising disclaimer.

Hunter disagrees, arguing that the blog is news and commentary. The case is set for hearing on Oct. 18 – and it has attracted the interest of social media law and First Amendment experts.

Rodney Smolla, a First Amendment scholar and former dean of Washington and Lee University filed a brief on Hunter’s behalf. He told the Washington Post:

“I don’t think the mere fact that a lawyer has been involved in a case means everything a lawyer says about it is an advertisement for future clients. Lawyers talk about their own cases all the time, in public settings, publications … and members of the public are able to take that speech for what it’s worth.”

In Missouri, the professional rules also require a variety of advertising disclaimers. Informal advisory opinions have required or recommended advertising disclaimers on wide variety of communications including:

  • Brochures that contain verdict and settlement information. (Opinion Number 970155)
  • Newsletters that highlight general legislative and case law developments. (Opinion Number 960217, 950250)
  • Materials provided during an informational seminar that include an attorney’s name and address. (Opinion Number 960209)

In late June, the American Bar Association’s Commission on Ethics released an initial draft proposal on lawyers’ use of technology in client development. The report did not recommend any new restrictions but did acknowledge that lawyers could use more guidance on how to use the tools in a way that is consistent with the profession’s values.

In the first comment to Rule 7.2 on advertising, the committee stated:

“To assist the public in obtaining and learning about legal services, lawyers should be allowed to make known their services not only through reputation but also through organized information campaigns in the form of advertising….The interest  in expanding public information about legal services ought to prevail over tradition.”

As the Internet and role of social media has expanded, the media is no longer the primary gatekeeper of information. Companies, activists, politicians and, yes, even lawyers increasingly rely on user-generated content to inform the public, educate consumers and disseminate marketing messages. Whether this means clashes involving free speech rights and lawyer advertising rules will also increase remains to be seen.

For more commentary on the Virginia State Bar charges, see:

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