Thursday, October 27, 2011

Blawging: Advertising or Free Speech?

Today, many attorneys add to their websites “blawgs,” that is, blogs discussing legal issues. No doubt, the blawgs serve as a source of information for others and also as a marketing device. Horace Frazier Hunter, a Richmond, Virginia, lawyer found himself before the state disciplinary board charged with several ethical violations. Bar counsel argued that because Hunter discussed his cases on his website blawg, he was engaged in advertising and should have attached a disclaimer. The state ethics rule forbids conduct that: 

advertises specific or cumulative case results, without a disclaimer that (i) puts the case results in a context that is not misleading; (ii) states that case results depend upon a variety of factors unique to each case; and (iii) further states that case results do not guarantee or predict a similar result in any future case undertaken by the lawyer. The disclaimer shall precede the communication of the case results. When the communication is in writing, the disclaimer shall be in bold type face and uppercase letters in a font size that is at least as large as the largest text used to advertise the specific or cumulative case results and in the same color and against the same colored background as the text used to advertise the specific or cumulative case results.

 Hunter responded that his news and commentary enjoy  First Amendment protection. The bar committee rejected his argument and imposed a public admonition. Hunter plans an appeal. I would not be surprised to see this issue popping up around the country. 

I also wonder why the  bar counsel felt it appropriate to single out one attorney for disciplinary action instead of simply issuing an opinion directed at all Virginia attorneys. 

Here is a link to an article in the newsletter of the Disciplinary Board of the Supreme Court of Pennsylvania, which, in turn, includes links to the bar  counsel’s charge and to a newspaper article on the case.


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