A Social Media Victory for Lawyers
Lawyers' Use of Social Media
We have previously expressed concern about regulating lawyers' use of social media. It is one thing to regulate for truth and fairness in promotional statements, and to restrict hyperbole so as not to create false expectations. It is another thing to say how the communication can be framed. Bar associations seek to regulate lawyers in ways that other governing bodies do not attempt for such professionals as doctors and accountants. The losers are small firms and sole practitioners - and those clients who would benefit from learning about them through social media.
Regulation of Lawyers' Blogs
One of the most troubling aspects of over-regulation is one we've written about previously. The Virginia State Bar in 2011 charged a lawyer with professional misconduct for talking about his own completed cases on his blog without adding an advertising disclaimer that results depend upon factors unique to each case and that results in one case do not predict similar results in others. The lawyer argued his blog consisted of news and commentary, that the information he posted was disclosed during public trials, was accurate, did not violate any confidences - and was not advertising. The State Bar disagreed, and the lawyer reluctantly posted the disclaimer.
One Lawyer's Blog
However, the lawyer, Horace Hunter, was so convinced that he had a right to blog about what was on the public record that he appealed his case - and won at least a partial victory. It has been reported[1] that in June of this year a three-judge panel of the Portsmouth Circuit Court in Virginia, while upholding the determination that the blog posts needed a disclaimer, overturned the finding that Hunter violated the confidentiality of client information with his blog posts. The panel found he had a First Amendment right to blog on the basis that the Virginia version of Rule 1.6 on client confidentiality prohibits the disclosure of "secrets and confidences." A court decision on the public record can hardly be called a secret, so Hunter was free to write about it.
Commentary On The Win
Some commentators have pointed out that this decision may have limited consequences because the ABA version of Rule 1.6, and that adopted by most states, says that a lawyer shall not reveal "information relating to the representation of a client" without the client's informed consent - a broader standard. Still, it seems clear that the ruling reaffirms a basic principle that lawyers can make informed comment about cases that are on the record. The need for a disclaimer may be onerous, but it still beats having to maintain silence when silence affords no benefit.
[1] Law Blogger's First Amendment Win, ABA Journal 6/15/12
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