PRESENT: All the Justices
HORACE FRAZIER HUNTER OPINION BY v. Record No. 121472 JUSTICE CLEO E. POWELL February 28, 2013 VIRGINIA STATE BAR, EX REL. THIRD DISTRICT COMMITTEE
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Kenneth R. Melvin, Alfred D. Swersky, and Von L. Piersall, Jr., Judges Designate
In this appeal of right by an attorney from a Virginia
State Bar (“VSB”) disciplinary proceeding before a three judge
panel appointed pursuant to Code § 54.1-3935, we consider
whether an attorney’s blog posts are commercial speech, whether
an attorney may discuss public information related to a client
without the client’s consent, and whether the panel ordered the
attorney to post a disclaimer that is insufficient under Rule
7.2(a)(3) of the Virginia Rules of Professional Conduct.
I. FACTS AND PROCEEDINGS
Horace Frazier Hunter, an attorney with the law firm of
Hunter & Lipton, PC, authors a trademarked blog 1 titled “This
Week in Richmond Criminal Defense,” which is accessible from his
law firm’s website, www.hunterlipton.com. This blog, which is
1 A “blog” is a shortened, colloquial reference for the term “weblog,” and is defined as “ ‘a Web site that contains an online personal journal with reflections, comments, and often hyperlinks provided by the writer; also: the contents of such a site.’ ” White v. Baker, 696 F.Supp.2d 1289, 1310 (N.D. Ga. 2010) (quoting Merriam-Webster Online Dictionary, http://www.merriam-webster.com/dictionary/blog (last visited January 31, 2013)). 1 not interactive, contains posts discussing a myriad of legal
issues and cases, although the overwhelming majority are posts
about cases in which Hunter obtained favorable results for his
clients. Nowhere in these posts or on his website did Hunter
include disclaimers.
As a result of Hunter’s blog posts on his website, the VSB
launched an investigation. During discussions with the VSB
about whether his blog constituted legal advertising, Hunter
wrote a letter to the VSB offering to post a disclaimer on one
page of his website:
“This Week in Richmond Criminal Defense is not an advertisement[;] it is a blog. The views and opinions expressed on this blog are solely those of attorney Horace F. Hunter. The purpose of these articles is to inform the public regarding various issues involving the criminal justice system and should not be construed to suggest a similar outcome in any other case.”
However, the negotiations stalled and no disclaimers were posted
at that time.
On March 24, 2011, the VSB charged Hunter with violating
Rules 7.1, 7.2, 7.5, 2 and 1.6 by his posts on this blog.
Specifically, the VSB argued that he violated rules 7.1 and 7.2
because his blog posts discussing his criminal cases were
2 The District Committee ultimately did not find by clear and convincing evidence that Hunter violated Rule 7.5 and dismissed that charge. 2 inherently misleading as they lacked disclaimers. 3 The VSB also
asserted that Hunter violated Rule 1.6 by revealing information
that could embarrass or likely be detrimental to his former
clients by discussing their cases on his blog without their
consent.
In a hearing on October 18, 2011, the VSB presented
evidence of Hunter’s alleged violations. The VSB presented a
former client who testified that he did not consent to
information about his cases being posted on Hunter’s blog and
believed that the information posted was embarrassing or
detrimental to him, despite the fact that all such information
had previously been revealed in court. The VSB investigator
testified that other former clients felt similarly. The VSB
also entered all of the blog posts Hunter had posted on his blog
to date. At that time, none of the posts entered contained
disclaimers. Of these thirty unique posts, only five discussed
legal, policy issues. The remaining twenty-five discussed
cases. Hunter represented the defendant in twenty-two of these
cases and identified that fact in the posts. In nineteen of
these twenty-two posts, Hunter also specifically named his law
firm. One of these posts described a case where a family hired
3 Although some of Hunter’s blog posts now contain disclaimers, not all do and the disclaimers that are present were not added until after the VSB brought disciplinary charges against Hunter. 3 Hunter to represent them in a wrongful death suit and the
remaining twenty-one of these posts described criminal cases.
In every criminal case described, Hunter’s clients were either
found not guilty, plea bargained to an agreed upon disposition,
or had their charges reduced or dismissed.
At the hearing, Hunter testified that he has many reasons
for writing his blog - including marketing, creation of a
community presence for his firm, combatting any public
perception that defendants charged with crimes are guilty until
proven innocent, and showing commitment to criminal law. Hunter
stated that he had offered to post a disclaimer on his blog, but
the offered disclaimer was not satisfactory to the VSB. Hunter
admitted that he only blogged about his cases that he won. He
also told the VSB that he believed that using the client’s name
is important to give an accurate description of what happened.
Hunter told the VSB that he did not obtain consent from his
clients to discuss their cases on his blog because all the
information that he posted was public information.
Following the hearing, the VSB held that Hunter violated
Rule 1.6 by “disseminating client confidences” obtained in the
course of representation without consent to post. Specifically,
the VSB found that the information in Hunter’s blog posts “would
be embarrassing or be likely to be detrimental” to clients and
he did not receive consent from his clients to post such
4 information. The VSB further held that Hunter violated Rule
7.1. The VSB’s conclusion that Hunter’s website contained legal
advertising was based on its factual finding that “[t]he
postings of [Hunter’s] case wins on his webpage advertise[d]
cumulative case results.” Moreover, the VSB found that at least
one purpose of the website was commercial. The VSB further held
that he violated Rule 7.2 by “disseminating case results in
advertising without the required disclaimer” because the one
that he proposed to the VSB was insufficient. The VSB imposed a
public admonition with terms including a requirement that he
remove case specific content for which he has not received
consent and post a disclaimer that complies with Rule 7.2(a)(3)
on all case-related posts.
Hunter appealed to a three judge panel of the circuit court
and the court heard argument. The court disagreed with Hunter
that de novo was the proper standard of review and instead
applied the following standard: “whether the decision is
contrary to the law or whether there is substantial evidence in
the record upon which the district committee could reasonably
have found as it did.” The court further ruled that the VSB’s
interpretation of Rule 1.6 violated the First Amendment and
dismissed that charge. The court held VSB’s interpretation of
Rules 7.1 and 7.2 do not violate the First Amendment and that
the record contained substantial evidence to support the VSB’s
5 determination that Hunter had violated those rules. The court
imposed a public admonition and required Hunter 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.” This appeal
followed.
II. ANALYSIS
A. Whether “[t]he Ruling of the Circuit Court finding a violation of Rules 7.1(a)(4) and 7.2(a)(3) conflicts with the First Amendment to the Constitution of the United States.”
Rule 7.1(a)(4), which is the specific portion of the Rule
that the VSB argued that Hunter violated, states:
(a) A lawyer shall not, on behalf of the lawyer or any other lawyer affiliated with the lawyer or the firm, use or participate in the use of any form of public communication if such communication contains a false, fraudulent, misleading, or deceptive statement or claim. For example, a communication violates this Rule if it:
. . . .
(4) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law.
The VSB also argues that Hunter violated the following
subsection of Rule 7.2(a)(3):
(a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through
6 written, recorded, or electronic communications, including public media. In the determination of whether an advertisement violates this Rule, the advertisement shall be considered in its entirety, including any qualifying statements or disclaimers contained therein. Notwithstanding the requirements of Rule 7.1, an advertisement violates this Rule if it:
(3) 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.
In response to these allegations, Hunter contends that
speech concerning the judicial system is “quintessentially
‘political speech’” which is within the marketplace of ideas.
Hunter asserts that the Supreme Court of the United States has
twice declined to answer whether political speech is transformed
into commercial speech simply because one of multiple motives is
commercial. Specifically, he argues that his blog posts are not
commercial because
(1) the [Supreme Court of the United States’] formal commercial speech definitions focus
7 heavily on whether the speech does no more than propose a commercial transaction; (2) the [Supreme Court of the United States’] commercial speech decisions, to the extent that they discuss motivation at all, have focused on whether the speech is solely driven by commercial interest; (3) the [Supreme Court of the United States] has repeatedly insisted that the existence of a commercial motivation does not disqualify speech from the heightened scrutiny protection it would otherwise deserve; (4) the [Supreme Court of the United States] has warned that when commercial and political elements of speech are inextricably intertwined, the heightened protection applicable to the political speech should be applied, lest the political speech be chilled; and (5) the constitutional policy arguments that undergird the reduction of protection for commercial speech have no persuasive force when the content of the speech is political.
The VSB responds that Hunter’s blog posts are inherently
misleading commercial speech.
“Whether the inherent character of a statement places it
beyond the protection of the First Amendment is a question of
law over which . . . this Court . . . exercise[s] de novo
review.” Peel v. Atty. Registration & Disciplinary Comm’n, 496
U.S. 91, 108 (1990). An appellate Court must independently
examine the entire record in First Amendment cases to ensure
that “ ‘a forbidden intrusion on the field of free expression’ ”
has not occurred. Bose Corp. v. Consumers Union of United
States, Inc., 466 U.S. 485, 499 (1984) (quoting New York Times
Co. v. Sullivan, 376 U.S. 254, 284-86 (1964)).
Turning to Hunter’s argument that his blog posts are
8 political, rather than commercial, speech, we note that “[t]he
existence of ‘commercial activity, in itself, is no
justification for narrowing the protection of expression secured
by the First Amendment.’ ” Bigelow v. Virginia, 421 U.S. 809,
818 (1975) (quoting Ginsburg v. United States, 383 U.S. 463, 474
(1966)). However, when speech that is both commercial and
political is combined, the resulting speech is not automatically
entitled to the level of protections afforded political speech.
Board of Trustees of the State University of New York v. Fox,
492 U.S. 469, 474 (1989).
While it is settled that attorney advertising is commercial
speech, Bates v. State Bar of Arizona, 433 U.S. 350, 363-64
(1977), Bates and its progeny were decided in the era of
traditional media. In recent years, however, advertising has
taken to new forms such as websites, blogs, and other social
media forums, like Facebook and Twitter. See generally Spirit
Airlines, Inc. v. United States Dep’t of Transp., 687 F.3d 403
(D.C. Cir. 2012); QVC Inc. v. Your Vitamins Inc., 439 Fed. Appx.
165 (3d Cir. 2011); Athleta, Inc. v. Pitbull Clothing Co., 2013
U.S. Dist. LEXIS 6867 (C.D. Cal. Jan. 7, 2013).
Thus, we must examine Hunter’s speech to determine whether
it is commercial speech, specifically, lawyer advertising.
Advertising, like all public expression, may be subject to reasonable regulation that serves a legitimate public interest. To the extent that
9 commercial activity is subject to regulation, the relationship of speech to that activity may be one factor, among others, to be considered in weighing the First Amendment interest against the governmental interest alleged. Advertising is not thereby stripped of all First Amendment protection. The relationship of speech to the marketplace of products or of services does not make it valueless in the marketplace of ideas.
Bigelow, 421 U.S. at 826 (internal citations omitted). Simply
because the speech is an advertisement, references a specific
product, or is economically motivated does not necessarily mean
that it is commercial speech. Bolger v. Youngs Drug Products
Corp., 463 U.S. 60, 67 (1983). “The combination of all these
characteristics, however, provides strong support for the . . .
conclusion that [some blog posts] are properly characterized as
commercial speech” even though they also discuss issues
important to the public. Id. at 67-68 (emphasis in original).
Certainly, not all advertising is necessarily commercial,
e.g., public service announcements. See id. at 66 (holding
“[t]he mere fact that these pamphlets are conceded to be
advertisements clearly does not compel the conclusion that they
are commercial speech”). However, all commercial speech is
necessarily advertising. See Webster's Third New International
Dictionary 31 (1993) (defining “advertisement” as “a calling
attention to or making known[;]an informing or notifying[;] a
calling to public attention[;] a statement calling attention to
something[;] a public notice; esp[ecially] a paid notice or
10 announcement published in some public print (as a newspaper,
periodical, poster, or handbill) or broadcast over radio or
television”). Indeed, the Supreme Court of the United States
has said that “[t]he diverse motives, means, and messages of
advertising may make speech ‘commercial’ in widely varying
degrees.” Bigelow, 421 U.S. at 826.
Here, Hunter’s blog posts, while containing some political
commentary, are commercial speech. Hunter has admitted that his
motivation for the blog is at least in part economic. The posts
are an advertisement in that they predominately describe cases
where he has received a favorable result for his client. He
unquestionably references a specific product, i.e., his
lawyering skills as twenty-two of his twenty-five case related
posts describe cases that he has successfully handled. Indeed,
in nineteen of these posts, he specifically named his law firm
in addition to naming himself as counsel.
Moreover, the blog is on his law firm’s commercial website
rather than an independent site dedicated to the blog. See
Howard J. Bashman, How Appealing Blog (Feb. 11, 2013, 9:40 AM),
http://howappealing.law.com (an independent blog by a
Pennsylvania appellate attorney that is accessible through
Law.com at http://legalblogwatch.typepad.com/). The website
11 uses the same frame 4 for the pages openly soliciting clients as
it does for the blog, including the firm name, a photograph of
Hunter and his law partner, and a “contact us” form. The
homepage of the website on which Hunter posted his blog states
only:
Do you need Richmond attorneys?
Hunter & Lipton, CP [sic] is a law practice in Richmond, Virginia specializing in litigation matters from administrative agency hearings to serious criminal cases. As experienced Richmond attorneys, we bring a genuine desire to help those who find themselves in difficult situations. Our partnership was founded on the idea that everyone, no matter what the circumstance, deserves a zealous advocate to fight on his or her behalf.
People make mistakes, and may even find themselves in situations not of their own making. And for these people, the system can be extraordinarily unforgiving and unjust—but you do not have to face this system alone.
If you find yourself in a difficult legal situation, the Richmond attorneys of Hunter & Lipton, LLP would consider it a privilege to represent you. Please contact our office with any questions or to schedule a consultation.
This non-interactive blog does not allow for discourse about the
cases, as non-commercial commentary often would by allowing
readers to post comments. See, e.g., Law.com Legal Blog Watch,
4 See Joan M. Reitz, Online Dictionary for Library and Information Science, http://www.abc- clio.com/ODLIS/odlis_F.aspx?#frame (last visited February 25, 2013) (defining frame as "[a] separately scrollable area in the window of a computer application or in a Web page that has been divided into more than one scrollable area"). 12 http://legalblogwatch.typepad.com/; Above the Law,
http://abovethelaw.com/. See also June Lester & Wallace C.
Koehler, Jr., Fundamentals of Information Studies 102 (2d ed.
2007) (observing that “[i]n contrast to the interaction possible
in some other forms of web-published information, blog readers
are most frequently permitted to leave comments and create
threads of discussion”). Instead, in furtherance of his
commercial pursuit, Hunter invites the reader to “contact us”
the same way one seeking legal representation would contact the
firm through the website.
Thus, the inclusion of five generalized, legal posts and
three discussions about cases that he did not handle on his non-
interactive blog, no more transform Hunter’s otherwise self-
promotional blog posts into political speech, “than opening
sales presentations with a prayer or a Pledge of Allegiance
would convert them into religious or political speech.” Fox,
492 U.S. at 474-75. Indeed, unlike situations and topics where
the subject matter is inherently, inextricably intertwined,
Hunter chose to comingle sporadic political statements within
his self-promoting blog posts in an attempt to camouflage the
true commercial nature of his blog. “Advertisers should not be
permitted to immunize false or misleading product information
from government regulation simply by including references to
public issues.” Bolger, 463 U.S. at 68. When considered as a
13 whole, the economically motivated blog overtly proposes a
commercial transaction that is an advertisement of a specific
product.
Having determined that Hunter’s blog posts discussing his
cases are commercial speech,
we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.
Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447
U.S. 557, 566 (1980); Adams Outdoor Advertising v. City of
Newport News, 236 Va. 370, 383, 373 S.E.2d 917, 923 (1988).
The VSB does not contend, nor does the record indicate,
that Hunter’s posts do not concern lawful activity; rather, the
VSB argues that the posts are inherently misleading. While we
do not hold that the blog posts are inherently misleading, we do
conclude that they have the potential to be misleading.
“[B]ecause the public lacks sophistication concerning legal
services, misstatements that might be overlooked or deemed
unimportant in other advertising may be found quite
inappropriate in legal advertising.” Bates, 433 U.S. at 383.
Of the thirty posts that were on his blog at the time of the VSB
14 hearing, twenty-two posts named himself as counsel and discussed
cases that he handled. With one exception, in all of these
posts, he described the successful results that he obtained for
his clients. 5 While the States may place an absolute prohibition
on inherently misleading advertising, “the States may not place
an absolute prohibition on certain types of potentially
misleading information, . . . if the information also may be
presented in a way that is not deceptive.” In re R.M.J., 455
U.S. 191, 203 (1982). Here, the VSB’s own remedy of requiring
Hunter to post disclaimers on his blog posts demonstrates that
the information could be presented in a way that is not
misleading or deceptive.
Thus, we must examine whether the VSB has a substantial
governmental interest in regulating these blog posts. Central
Hudson, 447 U.S. at 566. The Supreme Court of the United States
has recognized that “ ‘[i]f the naiveté of the public will cause
advertising by attorneys to be misleading, then it is the bar’s
role to assure that the populace is sufficiently informed as to
enable it to place advertising in its proper perspective.’ ”
Peel, 496 U.S. at 110 (quoting Bates, 433 U.S. at 375). Indeed,
the Supreme Court of the United States expressed concern that
5 In the one case that he does not describe favorable results he has received, he discusses how he has been retained by a family in a wrongful death lawsuit against a police department. 15 the public may lack the sophistication to discern misstatements
as to the quality of a lawyer’s services. Bates, 433 U.S. at
383. Therefore, the VSB has a substantial governmental interest
in protecting the public from an attorney’s self-promoting
representations that could lead the public to mistakenly believe
that they are guaranteed to obtain the same positive results if
they were to hire Hunter.
Because the VSB’s governmental interest is substantial, we
must now determine “whether the regulation directly advances the
governmental interest asserted.” Central Hudson, 447 U.S. at
566. The VSB’s 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. Rules 7.1
and 7.2. This requirement directly advances the VSB’s
governmental interest.
Finally, we must determine whether the VSB’s regulations
are no more restrictive than necessary. Central Hudson, 447
U.S. at 566. The Supreme Court of the United States has
approved the use of disclaimers or explanations. Zauderer v.
Office of Disciplinary Counsel of the Supreme Court of Ohio, 471
U.S. 626, 651 (1985); In re R.M.J., 455 U.S. at 203; Bates, 433
U.S. at 384. The disclaimers mandated by the VSB
shall precede the communication of the case results. When the communication is in writing, the disclaimer shall be in bold type face and
16 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.
Rule 7.2(a)(3). This requirement ensures that the disclaimer is
noticeable and would be connected to each post so that any
member of the public who may use the website addresses to
directly access Hunter’s posts would be in a position to see the
disclaimer. Therefore, we hold that the disclaimers required by
the VSB are “not more extensive than is necessary to serve that
interest.” Central Hudson, 447 U.S. at 566.
Hunter’s blog posts discuss lawful activity and are not
inherently misleading, but the VSB has asserted a substantial
governmental interest to protect the public from potentially
misleading lawyer advertising. See Central Hudson, 447 U.S. at
566. These regulations directly advance this interest and are
not more restrictive than necessary, unlike outright bans on
advertising. Id. We thus conclude that the VSB’s Rules 7.1 and
7.2 do not violate the First Amendment. As applied to Hunter’s
blog posts, they are constitutional and the panel did not err.
B. Whether the circuit court erred in holding that the VSB’s application of Rule 1.6 to Hunter’s blog violated his First Amendment rights.
Rule 1.6(a) states, that with limited exceptions,
[a] lawyer shall not reveal information protected by the attorney-client privilege under applicable
17 law or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation . . . .
The VSB argues that the circuit court erred in holding that its
interpretation of Rule 1.6 violates the First Amendment and that
Hunter violated that rule by disclosing potentially embarrassing
information about his clients on his blog “in order to advance
his personal economic interests.” VSB argues that lawyers, as
officers of the Court, are prohibited from engaging in speech
that might otherwise be constitutionally protected. Thus, the
VSB’s interpretation of Rule 1.6 involves two types of
information: 1) that which is protected by the attorney-client
privilege, and 2) that which is public information but is
embarrassing or likely to be detrimental to the client. Hunter
is charged with disseminating the later type of information. In
response to these allegations, Hunter argues that the VSB’s
interpretation of Rule 1.6 is unconstitutional because the
matters discussed in his blogs had previously been revealed in
public judicial proceedings and, therefore, as concluded
matters, were protected by the First Amendment. Thus, we are
called upon to answer whether the state may prohibit an attorney
from discussing information about a client or former client that
18 is not protected by attorney-client privilege without express
consent from that client. We agree with Hunter that it may not.
The cases cited by VSB in support of its position differ
from this case in a substantial way; the cases relied upon by
VSB involve pending proceedings. It is settled that attorney
speech about public information from cases is protected by the
First Amendment, but it may be regulated if it poses a
substantial likelihood of materially prejudicing a pending case.
Gentile v. State Bar of Nevada, 501 U.S. 1030, 1076 (1991).
“[A] presumption of openness inheres in the very nature of
a criminal trial under our system of justice.” Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980).
Moreover,
[a] trial is a public event. What transpires in the court room is public property. If a transcript of the court proceedings had been published, we suppose none would claim that the judge could punish the publisher for contempt. And we can see no difference though the conduct of the attorneys, of the jury or even of the judge himself, may have reflected on the court. Those who see and hear what transpired can report it with impunity. There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it.
Craig v. Harney, 331 U.S. 367, 374 (1947). All of Hunter’s blog
posts involved cases that had been concluded. Moreover, the VSB
concedes that all of the information that was contained within
19 Hunter’s blog was public information and would have been
protected speech had the news media or others disseminated it.
In deciding whether the circuit court erred, we are required to
make our “own inquiry into the imminence and magnitude of the
danger said to flow from the particular utterance and then to
balance the character of the evil, as well as its likelihood,
against the need for free and unfettered expression.” Landmark
Communications, Inc. v. Virginia, 435 U.S. 829, 843 (1978). “At
the very least, [the] cases recognize that disciplinary rules
governing the legal profession cannot punish activity protected
by the First Amendment, and that First Amendment protection
survives even when the attorney violates a disciplinary rule he
swore to obey when admitted to the practice of law.” Gentile,
501 U.S. at 1054. The VSB’s interpretation of Rule 1.6 fails
these standards even when we
balance “whether the ‘practice in question [furthers] an important or substantial governmental interest unrelated to the suppression of expression' and whether 'the limitation of First Amendment freedoms is no greater than is necessary or essential to the protection of the particular governmental interest involved,’ ”
Id. (quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32
(1984)). State action that punishes the publication of truthful
information can rarely survive constitutional scrutiny. Smith
v. Daily Mail Pub. Co., 443 U.S. 97, 102 (1979).
20 The VSB argues that it can prohibit an attorney from repeating
truthful information made in a public judicial proceeding even
though others can disseminate this information because an
attorney repeating it could inhibit clients from freely
communicating with their attorneys or because it would undermine
public confidence in the legal profession. Such concerns,
however, are unsupported by the evidence. To the extent that
the information is aired in a public forum, privacy
considerations must yield to First Amendment protections. In
that respect, a lawyer is no more prohibited than any other
citizen from reporting what transpired in the courtroom. Thus,
the circuit court did not err in concluding that the VSB’s
interpretation of Rule 1.6 violated the First Amendment.
C. Whether the circuit court erred in requiring Hunter to post a disclaimer on his website that does not comply with the requirements of Rule 7.2(3) and therefore does not eliminate the misleading nature of his blog posts.
The VSB argues that the single disclaimer that the circuit
court ordered Hunter to post on his blog was insufficient to
comport with Rule 7.2(a)(3) because it did not eliminate the
misleading nature of the posts.
As we have already concluded, Hunter's blogs are commercial
speech and, thus, constitute lawyer advertising. When
advertising cumulative or specific case results, Rule 7.2
requires that a disclaimer
21 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.
Rule 7.2(a)(3).
Here, the VSB required Hunter to post a disclaimer that
complies with Rule 7.2(a)(3) on all case-related posts. This
means that Hunter’s disclaimers “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.” Rule 7.2(a)(3). The circuit court,
however, imposed the following disclaimer to be posted once:
“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.”
While the substantive meaning of the imposed disclaimer may
conform to the requirements stated in Rule 7.2(a)(3)(i) through
(iii), it nevertheless is less than what the rule requires. In
contrast to the committee’s determination, there is no provision
in the circuit court’s order requiring that the disclaimer be
formatted and presented in the manner required by Rule
7.2(a)(3), and the text of the disclaimer prescribed by the
22 circuit court is not itself formatted and presented in that
manner. Even so, Hunter does not argue that the disclaimer
required by the circuit court is an appropriate, less
restrictive means of regulating his speech and, therefore, we
decline to so hold. Based on the arguments presented to it, the
circuit court erred by imposing a disclaimer that conflicted
with the rule. See, e.g., Rosillo v. Winters, 235 Va. 268, 272,
367 S.E.2d 717, 719 (1988) (concluding that a circuit court
abuses its discretion by “enter[ing an] order . . . dispens[ing]
with the requirements of [a] Rule”); Zaug v. Virginia State Bar,
285 Va. ___, ___, ___ S.E.2d ___, ___ (2013) (this day decided)
(“The Virginia Rules of Professional Conduct are Rules of this
Court.”).
III. CONCLUSION
For the foregoing reasons, we hold that Hunter’s blog posts
are potentially misleading commercial speech that the VSB may
regulate. We further hold that circuit court did not err in
determining that the VSB’s interpretation of Rule 1.6 violated
the First Amendment. Finally, we hold that because the circuit
court erred in imposing one disclaimer did not fully comply with
Rule 7.2(a)(3), we reverse and remand for imposition of
disclaimers that fully comply with that Rule.
Affirmed in part, reversed in part, and remanded.
23 JUSTICE LEMONS, with whom JUSTICE McCLANAHAN joins, dissenting in part.
I agree with the majority's resolution of the Rule 1.6
issue. However, I dissent from the majority's determination
that Hunter is guilty of violating Rules 7.1(a)(4) and 7.2(a)(3)
and that Hunter must post a disclaimer that complies with Rule
7.2(a)(3).
Rule 7.1 governs communications concerning a lawyer's
services. Rule 7.1(a)(4) states:
(a) A lawyer shall not, on behalf of the lawyer or any other lawyer affiliated with the lawyer or the firm, use or participate in the use of any form of public communication if such communication contains a false, fraudulent, misleading, or deceptive statement or claim. For example, a communication violates this Rule if it:
(4) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law.
Rule 7.2 is only applicable to advertisements. Rule
7.2(a)(3) states:
(a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded, or electronic communications, including public media. In the determination of whether an advertisement violates this Rule, the advertisement shall be considered in its
24 entirety, including any qualifying statements or disclaimers contained therein. Notwithstanding the requirements of Rule 7.1, an advertisement violates this Rule if it:
(3) 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's blog contains articles about legal and policy
issues in the news, as well as detailed descriptions of criminal
trials, the majority of which are cases where Hunter was the
defense attorney. The articles also contain Hunter's commentary
and critique of the criminal justice system. He uses the case
descriptions to illustrate his views.
The First Amendment
I believe that the articles on Hunter's blog are political
speech that is protected by the First Amendment. The Bar
concedes that if Hunter's blog is political speech, the First
25 Amendment protects him and the Bar cannot force Hunter to post
an advertising disclaimer on his blog.
Speech concerning the criminal justice system has always
been viewed as political speech. "[I]t would be difficult to
single out any aspect of government of higher concern and
importance to the people than the manner in which criminal
trials are conducted." Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555, 575 (1980). As political speech, Hunter uses his
blog to give detailed descriptions of how criminal trials in
Virginia are conducted. He notes how the acquittal of some of
his clients has exposed flaws in the criminal justice system.
The majority asserts that because Hunter only discusses his
victories, his blog is commercial. The majority does not give
sufficient credit to the fact that Hunter uses the outcome of
his cases to illustrate his views of the system. Hunter
testified that one of the reasons he maintained the blog was to
combat "the public perception that is clearly on the side that
people are guilty until they're proven innocent." For example,
when discussing one of the cases where his client was found not
guilty, he concludes the post by explaining that this case is an
"example of how innocent people are often accused of committing
some of the most serious crimes. That is why it is important
not to judge the guilt of an individual until all the evidence
has been presented both for and against him."
26 The majority compares Hunter's detailed discussion of
criminal trials and how these outcomes illustrate the need to
hold government to its burden of proof, with "opening [a] sales
presentation[] with a prayer or a Pledge of Allegiance." The
majority proposes that his blog is not transformed into
political speech simply because he included eight posts about
legal issues and cases he was not involved in. However, the
twenty-two posts discussing criminal trials in Virginia are
political speech in their own right, and are not dependent upon
the content of the other eight posts.
The majority also focuses on the location of Hunter's blog,
and asserts that because the blog is accessed through the law
firm's website and is not interactive, that demonstrates the
blog is commercial in nature. While going through the law
firm's website is one way to access the blog, it is also
possible to go directly to the blog without navigating through
the firm's website. Further, the fact that the blog is not
interactive in no way commercializes the speech.
Many businesses have websites. It is not uncommon for
websites to include links to related news articles or
editorials. Merely because an article may be accessed through a
commercial portal does not change the content of the article.
It is the content of speech and the motivation of the speaker
27 that determines the level of protection to which speech is
entitled.
Hunter conceded that one of the purposes of the blog was
marketing. Although the United States Supreme Court has never
clearly decided whether political speech is transformed into
commercial speech because one of the multiple motivations of the
speaker is marketing and self-promotion, its jurisprudence leads
to the conclusion that Hunter's speech is not commercial.
The traditional test for determining whether speech is
commercial is if the speech "[does] no more than propose a
commercial transaction." Pittsburgh Press Co. v. Pittsburgh
Commission on Human Relations, 413 U.S. 376, 385 (1973)(emphasis
added); Virginia Bd. of Pharmacy v. Virginia Citizens Consumer
Council, Inc., 425 U.S. 748, 762 (1976); Board of Trustees of
the State Univ. of N.Y. v. Fox, 492 U.S. 469, 473-74 (1989).
Hunter's articles clearly do more than propose a commercial
transaction. They contain detailed discussions of criminal
trials in this Commonwealth, and Hunter's commentary and
critique of the criminal justice system.
The United States Supreme Court has held that commercial
speech is "expression related solely to the economic interests
of the speaker and its audience." Central Hudson Gas & Elec.
Corp. v. Public Service Comm'n. of N.Y., 447 U.S. 557, 561
(1980) (emphasis added). Marketing is not Hunter's sole
28 motivation for maintaining this blog. As discussed above, one
of Hunter's motivations in maintaining the blog is to
disseminate information about "the criminal justice system, the
criminal trials and the manner in which the government
prosecutes its citizens."
Even if marketing was Hunter's sole motivation, economic
motivation cannot be the basis for determining whether otherwise
political speech is protected. The United States Supreme Court
recognized in Pittsburgh Press Co. that merely having some
economic motivation does not create a basis for regulation. "If
a newspaper's profit motive were determinative, all aspects of
its operations – from the selection of news stories to the
choice of editorial position – would be subject to regulation if
it could be established that they were conducted with a view
toward increased sales. Such a basis for regulation clearly
would be incompatible with the First Amendment." 413 U.S. at
385.
The mere existence of some commercial motivation does not
change otherwise political speech into commercial speech.
"[S]peech does not lose its First Amendment protection because
money is spent to project it, as in a paid advertisement of one
form or another." Virginia Pharmacy, 425 U.S. at 761. In
discussing the economic motivations at issue in Sorrell v. IMS
Health, Inc., 564 U.S. __, 131 S.Ct. 2653 (2011), the United
29 States Supreme Court recognized that "[w]hile the burdened
speech results from an economic motive, so too does a great deal
of vital expression." Id. at 2665.
Even if there is some commercial content to Hunter's
speech, any commercial content is intertwined with political
speech. When commercial and political elements are intertwined
in speech, the heightened scrutiny test must apply to all of the
speech.
It is not clear that a professional’s speech is necessarily commercial whenever it relates to that person’s financial motivation for speaking. But even assuming, without deciding, that such speech in the abstract is indeed merely “commercial,” we do not believe that the speech retains its commercial character when it is inextricably intertwined with otherwise fully protected speech. Our lodestars in deciding what level of scrutiny to apply to a compelled statement must be the nature of the speech taken as a whole and the effect of the compelled statement thereon.
Riley v. National Federation of the Blind of N.C., Inc., 487
U.S. 781, 795-96 (1988) (internal citation omitted).
In this case, the policies the Bar advances have no
persuasive force when applied to Hunter's blog. The purposes of
Rules 7.1 and 7.2 are to protect the public from misleading
communications and advertisements concerning a lawyer's
services. Hunter's articles contain detailed descriptions of
the trials, along with his commentary on the criminal justice
system. The Bar produced no evidence that anyone has found
30 Hunter's articles to be misleading. There appears to be little
benefit, if any, to the public by requiring Hunter to post a
disclaimer that concedes his articles are advertisements.
Hunter disagrees that his articles are advertisements, and
claims they are political speech. He objects to cheapening his
political speech by denominating it as advertisement material.
Accordingly, I would hold that Hunter's speech is
political, is entitled to the heightened scrutiny test, and that
he cannot be forced to include the advertising disclaimer under
Rule 7.2 that the Bar seeks to force upon his writings.