Court avoids deciding whether lawyer’s blog must carry disclaimer

Monday, May 16, 2011

A Richmond, Va.-based criminal-defense attorney might have to include a disclaimer on his blog that informs would-be clients that results vary in individual legal cases.

In August 2010, the Virginia State Bar informed Horace Hunter that he needed to put a disclaimer on his blog, “This Week in Richmond Criminal Defense,” in order to comply with the Virginia Rules of Professional Conduct – the rules that govern attorneys.

The bar’s position was that Hunter must avoid any possible misrepresentation of his legal practice or create unjustified expectations among potential clients that he would be as successful in future cases as in those he blogged about.

Hunter responded that the blog constituted protected speech and he did not need to include any such disclaimer. In September 2010, the Virginia bar filed an ethics complaint against Hunter for failing to include one. Hunter responded by filing a federal lawsuit, asserting that the forced disclaimer violated his First Amendment free-speech rights.

However, the federal district court dismissed Hunter’s suit May 9 in part because it said a federal court should abstain from deciding constitutional issues likely to be litigated in a state court.

“Hunter will have the opportunity to raise his First Amendment challenges in the bar disciplinary hearing,” U.S. District Judge John A. Gibney Jr. wrote in his opinion in Hunter v. Virginia State Bar. The judge added that “allowing Hunter to utilize the federal courts to circumvent the state bar disciplinary process would intrude upon the province of the state court.”

A disciplinary hearing is scheduled for June 10 on the disclaimer issue.

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