Time to Add a Disclaimer to Your Blog?

As I blogged about previously, earlier in the month the Virginia Bar charged attorney Richmond Attorney Horace Hunter with misconduct due to his Richmond Criminal Defense News blog (PDF here).[1]

The attorney in question has now been found guilty of violating the Virginia ethics rules regarding advertising. Don’t fear for Hunter, his penalty was a public admonition and he was told take corrective action within 30 days – public admonition is the least sever penalty available.

Specifically, the Virginia Disciplinary Committee found that Hunter violated an ethical rule that mandated an advertising disclaimer on his blog when he wrote about his own legal cases.  Under Virginia Ethics Rule 7.2 Hunter must ethically post a disclaimer on the homepage of his blog.[2]  Since Hunter didn’t have the disclaimer in his blog posts noting his firm’s wins to be advertising, the Committee found his conduct to be unethical.

The Committee further found that Horace Frazier Hunter violated rules by disclosing detrimental or embarrassing information about clients without their consent.  Apparently, at least two former clients said they did not want their cases posted on Hunter’s blog after learning that he had written about their cases.

Hunter had argued that his blog consisted of news and commentary and refused to post the disclaimer as a violation of his First Amendment free speech rights. He claimed that since the information he posted was accurate and disclosed during public trials, that he did not violate any confidences.

“Although I adamantly disagree with the panel’s decision, I do respect it” [3]

The Virginia Disciplinary Committee contends that the disclaimer is aimed at preventing potential clients from being misled – something that could generate mistrust of the justice system or make clients mistrust their lawyers.  The Committee did not see the First Amendment as being involved in the case.

“The First Amendment has no bearing on this violation. … It doesn’t impact journalists, it doesn’t impact bloggers, it doesn’t impact the general public.” – Renu Brennan, Assistant Virginia Bar Counsel [4]

Will this move have the chilling effect that some have proposed? [5]  I doubt it.  Attorneys might, however, want to start including a disclaimer on their blog if they talk about their cases.

Further, it’s always wise to remember to remain ethical in our new Web 2.0 World. Absent a specific rule or guideline, it’s always wise to use common sense.

[2] However, this Rule 7.2 Disclaimer Rule is only to apply, “when listing previous wins in advertising.”  The disclaimer must state that prior results don’t guarantee future success. The issue will be will be whether Hunter’s blog posts are written in a truly journalistic fashion, or are they simply disguised advertising taking the form of blog posts

[3] See: Virginia Bar Rules that Lawyer Violated Advertising Rules with his Blog

[4] See: Virginia Bar Rules that Lawyer Violated Advertising Rules with his Blog

[5] The Washington Post‘s Capital Business Blog originally reported the story and stirred the pot when it cautioned that the action against Hunter could have a chilling effect on blogging in the legal industry. Washington Posts’s Catherine Ho (@WapoCat on Twitter) warned that Virginia lawyers who blog about their cases may suffer  the consequences from their state bar.  Ms. Ho also state that the Hunter case could set precedent for other states bar’s limiting legal blogs.