Disciplinary Panel Sides With the Virginia State Bar Over Blogging
Disciplinary Panel Sides With the Virginia State Bar Over Blogging
On October 18, 2011, a panel of the Third District Disciplinary Committee sided with the Virginia State Bar and found that the First Amendment did not apply to a Richmond, Virginia attorney who actively blogged about cases in which he was personally involved as counsel. In what was a highly publicized and highly contentious case between Horace F. Hunter and the Virginia State Bar, the panel’s decision promises to create a great deal of debate and controversy amongst attorneys nationwide.
The case arose out of an investigation by the Bar into a blog written by Horace F. Hunter of the law firm of Hunter & Lipton, PC. The law firm maintains a website and the website hosts a blog entitled “This Week In Richmond Criminal Defense.” This Week In Richmond Criminal Defense consists of articles written by Hunter and involve topics relevant to the criminal justice system and, on their face, are news and commentary. The problem for the Bar was that they considered the blog advertisement and wanted Hunter to put a disclaimer on his blog identifying it as an advertisement. Hunter took the position that the actual content of the speech in question, ranging from articles criticizing Attorney General Alberto Gonzalez for the firing of eight United States Attorneys, to descriptions of the content and operation of state and federal law, such as the elements of a criminal prosecution under the federal Racketeering Influenced and Corrupt Organizations Practices Act, to descriptions, sometimes editorial commentary, of the outcomes of judicial proceedings in state and federal courts, clearly falls within the core definition of political Speech protected by the First Amendment. The Bar took the position that because he was writing articles about his own cases, Hunter had created a de facto advertisement and the rules governing attorney advertising applied to Hunter’s Blog. The Bar never provided any controlling authority to support its contention that the blog was a de facto advertisement in spite of the fact that Hunter provided the Bar with ample authority supporting his contention that the content of the blog was absolutely protected political speech. In fact, Hunter provided the Bar with United States Supreme Court cases that have long held that there is nothing of more public concern than the government’s conduct of criminal trials; “There is no question that speech critical of the exercise of the State’s power lies at the very center of the First Amendment….the judicial system, and in particular our criminal justice courts, play a vital part in a democratic state, and the public has a legitimate interest in their operations.” Gintile v. State Bar of Nevada. In spite of the efforts of Hunter to work out a compromise disclaimer that would have alleviated the concerns of the Bar as well as maintained the integrity of the blog without having to identify it as an advertisement, the Bar refused to make any concessions.
Ultimately, Hunter refused to add a disclaimer to his blog identifying it as an advertisement and the Bar filed formal charges of misconduct. After receiving the charges of misconduct, Hunter immediately sued the Bar in the United States District Court for the Eastern District of Virginia seeking injunctive relief from the disciplinary action. Judge John A. Gibney, Jr. dismissed the suit on the abstention doctrine and did not address the First Amendment issue. His ruling stated that Hunter would have ample opportunity to present the First Amendment issue in the Bar proceeding and although the federal courts have jurisdiction, it would be inappropriate to intervene in an ongoing state judicial proceedings.
Hunter eventually hired Rodney Smolla, one of the most preeminent First Amendment scholars in the county, to assist in the preparation of his case. Smolla filed a 31 page brief citing numerous cases that rejected the Bar’s position that the speech in question was commercial speech and therefore deserving of less First Amendment protection. In a stunning reversal, the Bar shifted the focus of its case from the failure of Hunter to put a disclaimer on his blog to his failure to obtain client consent prior to writing articles regarding the trial of their cases. It appears that the Bar realized that their position was tenuous on the Fist Amendment issue and felt that the failure of Hunter to get his clients’ consent would resonate more with the disciplinary panel. The problem for the Bar on this issue was that there was a very recent case, Turner v. Commonwealth, that rejected that position out right. The Bar argued that the case in question was not binding upon the panel and the panel could distinguish it from the facts of this case.
After a full day of testimony and argument, the panel sided with the Virginia State Bar. It is a somewhat bizarre finding because their written decision makes no mention of any of the First Amendment authority cited by Hunter in this case. In fact, the written decision simply states “the panel found no difference between marketing and advertising as defined in Rule 7.2.” This was a very curious statement because the Supreme Court of the United States has not only found a fundamental difference between marketing and advertising, they have very clearly defined advertising for First Amendment analysis. The panel never addressed the standard they applied in finding the articles to be advertisements. Furthermore, the panel never provided any case law, scholarship, or analysis in its determination that the blog constituted an advertisement as defined by the Supreme Court. This is especially troubling in light of the fact that there have been two landmark First Amendment cases on this very issue that have been decided recently in the Untied States Supreme Court; Citizens United v. Federal Election Commission and Sorrell v. IMS Health, Inc.. Equally as troubling was the panel’s conclusion that the information disclosed at public trials was somehow confidential. The decision stated, “Turner articulated a two-pronged test that the information must be both publicly relayed and generally known. The panel did not find that the two cases cited as examples of violations met that standard.” First, it is not clear what the panel is referring to in that statement. Secondly, Turner stated that information disclosed publicly during the course of a public trial is by definition “publicly known.” Again, the panel provided no authority, scholarship, nor any analysis on this issue. Therefore, it is unclear how the panel reached its conclusions.
The case will now go to a three-judge circuit court panel where the issues will again be briefed and argued. The case continues to garner attention from lawyers and bloggers across the country.
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