Law School Case Brief
Hunter v. Va. State Bar ex rel. Third Dist. Comm. - 285 Va. 485, 744 S.E.2d 611 (2013)
The Virginia State Bar's (VSB) regulations permit blog posts that discuss specific or cumulative case results but require a disclaimer to explain to the public that no results are guaranteed. Va. Sup. Ct. R. pt. 6, § II, R. 7.1 and 7.2. This requirement directly advances the VSB's governmental interest.
Horace Frazier Hunter, a lawyer, authored a trademark blog which was accessible from his law firm's website. Hunter’s blog posts, while containing some political commentary, were commercial speech. Hunter admitted that his motivation for the blog was at least in part economic. The posts were an advertisement in that they predominately described cases where he had received a favorable result for his client. Nowhere in these posts or on his website did Hunter include disclaimers. The Virginia State Bar (VSB) charged the lawyer with violating Va. Sup. Ct. R. pt. 6, § II, R. 7.1, 7.2, 7.5, and 1.6. The Circuit Court of the City of Richmond (Virginia) dismissed the Rule 1.6 charge, but it held that substantial evidence supported VSB's determination that the lawyer violated Rules 7.1 and 7.2. An appeal was made.
Could the VSB regulate Hunter’s blog posts?
The Court held that Hunter’s blog posts were potentially misleading commercial speech that the VSB could regulate. VSB's Rules 7.1 and 7.2 did not violate the First Amendment. As applied to the lawyer's blog posts, they were constitutional, and the circuit court did not err. The Court further held that circuit court did not err in determining that the VSB's interpretation of Rule 1.6 violated the First Amendment. The state could not prohibit an attorney from discussing information about a client or former client that was not protected by attorney-client privilege without express consent from that client. Finally, the Court held that because the circuit court erred in imposing one disclaimer did not fully comply with Rule 7.2(a)(3), the Court reversed and remanded for imposition of disclaimers that fully complied with Rule 7.2(a)(3).
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