Recent First Amendment Decision May Assist Lawyers Who Blog

September 24, 2013 | Permalink

Here is good news for lawyers who hope to use their successful representation of specific clients to promote their law practices. Recently, the Supreme Court of Appeals of Virginia, addressing a lawyer’s blog, ruled that the lawyer had a First Amendment right to disclose certain non-privileged client information involving proceedings that were no longer pending.  In Hunter v. Virginia State Bar, (Record No. 121472, Va. 2013), a three judge panel held that a lawyer’s blog posts were commercial speech and therefore entitled to First Amendment protection. The blog was not entitled to full First Amendment protection, however, because its primary purpose was to advertise the law firm.

The recent Virginia decision opens a door for bloggers that had been apparently closed when new Rules of Professional Conduct made the scope of client confidential information much broader than it had been under prior rules. Now, all information relating to a client representation is confidential unless it meets one of several exceptions.  Under new confidentiality rules, the client need not be the source of the confidential information, and matters of public record, such as facts disclosed in publicly available court documents, may be deemed confidential. These changes to Rule 1.6 and other rules may prevent lawyers from publicizing court victories and other successful results obtained for their clients.

The Hunter decision approves the use of some blogs and advertising that might otherwise have been barred by confidentiality rules. The Hunter court held that the Virginia State Bar regulators violated the lawyer’s First Amendment rights when they interpreted Virginia’s Rule 1.6 (the old version) to prohibit the lawyer from disclosing in a blog non-privileged public information about former clients in connection with proceedings that were no longer pending. Because the blog was essentially advertising, the lawyer was required to post a disclaimer for all client-related posts in order to comply with ethics rules addressing lawyer advertising. To date, no similar ruling has addressed First Amendment protection for blogs by Illinois lawyers.  But see M.R. 23794, ARDC No. 09 CH 89 (revealing certain client confidences in blog, as well as other misconduct, warranted 60-day suspension). The thoughtful decision of Virginia’s highest court should be persuasive authority on this topic.