Hello everyone and welcome to this JACPA Ethics Alert and blog which is an update of my October 20, 2011 Ethics Alert and discusses the recent admonishment of a Virginia lawyer for discussing criminal proceedings and including client names in his blog and failing to include an advertising disclaimer. The lawyer’s practice includes criminal defense and he discussed criminal proceedings, including his clients’ cases, in his blog. The blog was hosted on his law firm’s website and did not include a disclaimer that is required by the Virginia lawyer advertising rules. The website also listed case results.
The matter was considered by a Virginia Bar disciplinary committee which found that the lawyer violated Virginia Bar rules by including clients’ names in blog posts without their consent and failing to include the advertising disclaimer. The case is In re Hunter, Virginia State Bar, 3d Dist. Comm., VSB No. 11-032-084907 (11/8/11). The report admonished the lawyer and warned that further rule violations would result in more serious sanctions.
According to the report, the lawyer’s website discussed information regarding his clients’ cases, “the disclosure of which would be embarrassing or be likely to be detrimental to the client”. In addition, the lawyer “did not receive consent from any of the clients listed in the postings on the respondent’s web page prior to disseminating such case information.” A former client testified that he was disturbed by the lawyer’s disclosure of a positive cocaine test in a blog post questioning the reliability of that test.
The lawyer argued that the names of his clients are not “confidential information” that he is required to protect under Virginia Rule of Professional Conduct 1.6 (substantially similar to Rule 4-1.6, Rules Regulating The Florida Bar) since the blog posts with clients’ names are based entirely on open court proceedings and other matters of public record, which include clients’ names. He further argued that he never disclosed any information from his confidential attorney-client discussions. The lawyer also argued that requiring his blog posts to have the required advertising disclaimers would violate his right to free speech and were not advertising.
According to media reports, Virginia Bar counsel took the position that the criminal trial court proceedings are not open trials, client names are necessarily revealed to the public in open court and in the court records, and Virginia’s general district courts are not courts of record. Bar counsel also argued that even if trials in general district court produced public disclosures, Rule 1.6 prohibits attorneys from disclosing any significant case information without client consent, and the rules prohibit lawyers from publicly disclosing “information relating to the representation of a client,” which is much broader than the attorney-client privilege. According to the Bar counsel, since the blog appears on the lawyer’s law firm website, it has a marketing/advertising effect, whether intended or not.
Bottom line: Every lawyer who blogs should be fully aware of the various disciplinary rules which may apply to such communication, including the requirement that the lawyer not disclose lawyer/client confidential information and advertising restrictions and requirements. As I have said in previous Ethics Alerts and seminars, the requirement that a lawyer maintain client confidentiality is much broader than the attorney/client privilege, which is governed by statute. In addition, lawyer/client confidentiality continues even after the lawyer/client relationship has ended.
…be careful out there!
As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.
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Disclaimer: this Ethics Alert does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.