This Week in Richmond Criminal Defense
The Virginia Supreme Court Issues Split Decision in Blogging Case
On February 28, 2013, the Virginia Supreme Court affirmed in part and reversed in part the decision of the Three-Judge Circuit Court Panel overturning the decision of the Third District Disciplinary Committee of the Virginia State Bar which had found that Horace F. Hunter violated Rule 1.6 of the Rules of Professional Conduct by writing articles about trials in which he was personally involved as counsel. The Third District Disciplinary Committee had also found that a disclaimer was required on the blog as the blog constituted an advertisement. The Three-Judge Panel found that the writings were protected by the First Amendment to the United States Constitution and the Virginia State Bar could not prohibit Hunter from discussing what happened during the course of a public trial. The Three-Judge Panel appeared to compromise on the issue of whether a disclaimer was required under Rule 7.2 (a) of the Rules of Professional Conduct, the rule governing attorney advertising, and drafted their own disclaimer that did not contain the language urged by the Bar. The Bar argued that Hunter’s blog was an advertisement and therefore subject to regulation while Hunter maintained that the blog was political speech and absolutely protected under the Fist Amendment. In a 7-2 decision, the Virginia Supreme Court unanimously held that under the First Amendment the Virginia State Bar could not prohibit Hunter from discussing trials in which he was personally involved. However, the Court split 7-2 on the issue of whether the articles written on Hunter’s blog constituted commercial speech and, as such, were subject to regulation by the Virginia State Bar and found that the articles were, in fact, commercial speech and therefore subject to regulation.
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 involves topics relevant to the criminal justice system and, on their face, is 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 fell 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 filed suit against 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 to 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, former dean of the University of Richmond and Washington & Lee law schools and 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 regarding the disclaimer 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, which 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 disciplinary committee sided with the Virginia State Bar. It was a somewhat bizarre finding because their written decision made no mention of any of the First Amendment authority cited by Hunter in this case. In fact, the written decision simply stated “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 disciplinary committee never addressed the standard they applied in finding the articles to be advertisements. Further, the panel never provided any case law, scholarship, or analysis in determining that the blog constituted an advertisement as defined by the Supreme Court. This was 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 disciplinary committee’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 disciplinary committee was 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 disciplinary committee provided no authority, scholarship, nor any analysis on this issue. Therefore, it is unclear how the committee reached its conclusions.
The Three-Judge Panel appeared more determined to address the Fist Amendment issue than was the disciplinary committee. In fact, the Three-Judge Panel was very troubled by the Bar’s position with respect to the allegation that Mr. Hunter committed an ethical violation by discussing elements of cases that became known at public trials. This was very disconcerting for the Bar as they felt the alleged Rule 1.6 violation was the strongest part of their case. Rodney Smolla attacked this alleged violation head on and in his opening remarks stated, “Every American lawyer has a First Amendment right, at the conclusion of a trial, to publicly read a transcript of that proceeding or discuss the proceeding, whether it is in a law school forum, a CLE, or on Fox News or CNN.” He further argued that an “open public courtroom is no longer subject to Rule 1.6. Period.” He argued that “with very rare exceptions, we do not have ‘secret’ trials in this country.” This argument seemed to resonate with the panel as the Judges continually asked whether a lawyer could discuss a case in which he or she was involved at a seminar, CLE, or some other academic or educational venue. In fact, Judge Swersky appeared to take issue with Bar counsel continuing to argue that Hunter disclosed information regarding his clients’ cases by asking, “Isn’t it true though that Mr. Hunter did not “disclose” the information but that the information was disclosed during the course of the trials?” Bar counsel then had to give a strained definition of the term “disclosure.” With respect to whether a disclaimer was required, Smolla first argued that the blog was non-commercial speech and therefore not subject to regulation by the state. He then argued that the articles written by Mr. Hunter on his blog were not inherently misleading. Finally he argued that Mr. Hunter had offered an alternate disclaimer which should have taken all of the oxygen out of the room and quelled any concerns the Bar could have possibly had with his blog. The alternate disclaimer read,
“This Week In Richmond Criminal Defense is a blog written by Horace F.
Hunter, founder and owner of Hunter & Lipton, PC. The blog contains articles written by him which focus on issues relevant to the criminal
justice system. To the extent that the articles discuss cases in which
Horace F. Hunter was personally involved as counsel, they are not intended to predict a similar outcome in future cases.”
Judge Melvin inquired as to whether the parties had tried to reach an agreement on the language of a disclaimer. The parties acknowledged that there had been talks, but no agreement could be reached. The Panel decided that a disclaimer would be required and Judge Melvin dictated a two-sentence disclaimer: “Case results depend upon a variety of factors unique to each case. Case results do not predict similar results in any future case.” The Panel did not require any other language or conditions mandated by Rule 7.2(a).
The case was then appealed to the Virginia Supreme Court where Hunter challenged the Three-Judge Panel’s determination that any disclaimer was required while the Bar challenged that Court’s finding as to the lack of a Rule 1.6 violation. The Virginia Supreme Court unanimously held that any prohibition preventing a lawyer from discussing events surrounding a public trial of criminal cases was a violation of the First Amendment. The Court reasoned that it is well settled law that attorney speech regarding matters of public proceedings is protected by the First Amendment. However, a seven Justice majority found that the articles written on the blog constituted commercial speech and the Bar’s regulation of that speech by way of requiring a disclaimer was reasonable. The Court reasoned that because This Week in Richmond Criminal Defense is part of the law firm’s website and Hunter conceded that part of his motivation for writing the blog is economic then the content of the blog is therefore commercial speech. This reasoning by the Court is troubling for two reasons. First, the Majority does not address the actual content of the articles in reaching its determination that the speech was commercial. As was noted by the Dissent, the content of the articles is quintessentially political. Also, the majority does not address the sufficiency of the alternate disclaimer proffered by Hunter. The Majority found that the articles were “potentially” misleading without a disclaimer but never found that the disclaimer offered by Hunter was potentially misleading. Also, there is some question as to whether the majority used the appropriate standard in disclaimer cases. The Majority found that if the communication is “potentially” misleading a disclaimer can be required. However, many observers believe that the communication must be “inherently” misleading before a disclaimer can be required.
The Dissent in this case was fairly vigorous in its determination that the speech was political, not commercial. The Dissent focused on the actually content of the articles rather than any motivation Hunter may have had in writing them. Writing for the Dissent, Justice Lemons stated,
“Speech concerning the criminal justice system has always been viewed as political speech….As political speech,
Hunter uses his blog to give detailed descriptions of how criminal trials in Virginia are conducted. He notes how the acquittals 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.”
The case will now likely head to the United States Supreme Court for review.
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