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Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

Wednesday, October 30, 2013

Ethical Advertising Rules Apply to Lawyer's Blogs

Lawyers are subject to a variety of rules of professional conduct, including restrictions on advertising. These rules of professional conduct differ from state-to-state, and are often enforced by the state supreme court, state bar association, or state attorney disciplinary commission or association.

The Virginia Supreme Court recently considered a case involving a state bar association investigation of an attorney's blog where the author discussed a variety of legal issues and cases. Most of the cases discussed on the blog involved cases in which the attorney obtained favorable results for his clients. The state bar association had ruled that the blog constituted advertising under the Virginia Rules of Professional Conduct and violated three separate professional rules of conduct. First, the bar association determined that the blog violated Rule 7.1 of the Virginia rules prohibiting a lawyer from making "a false or misleading communication about the lawyer or the lawyer's services." Second, the attorney violated Rule 7.2 because his blog posts about specific client results did not include prominent disclaimers. Third, the bar found a violation of Rule 1.6 on the grounds that he disseminated client confidences without their consent. Based on these three violations, the bar association ordered the attorney to remove case-specific content for which he had not received client consent and to post a disclaimer on all case-related posts

The attorney appealed to the Virginia Court of Appeals, claiming that the blog constituted political speech, not commercial speech, so it was not subject to the advertising requirements. The court of appeals overturned the bar's ruling that the blog violated Rule 1.6, finding that the information was all public information and the attorney had First Amendment rights to report on what happened in a courtroom. However, the court of appeals did find that the blog posts were commercial, rather than political, speech and required the attorney to post the following disclaimer: "Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case."

On appeal, the supreme court agreed with the court of appeals that the attorney did not violate client confidentialities in reporting on public case information. The court also affirmed the court of appeals ruling that the speech was commercial, not political, and therefore subject to the advertising requirements. The supreme court also upheld the disclaimer requirement for case-related posts.

The attorney appealed to the U.S. Supreme Court, which denied certiorari.

You can read the case here, and a detailed analysis of the case on the American Bar Association's website.


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