A Virginia attorney mostly blogged about successful outcomes he obtained for his clients and he named the clients. After getting dinged by the Virginia State Bar and told to remove content relating to sharing client names and needing to post a disclaimer that his blog was advertising, the VA Supremes took up the case. Here is what they said:
Its Okay to Reveal Client Names But Must Say Blog is Advertising
I think the court got it wrong on both counts. First, client confidentiality extends beyond the resolution of the case for the client. An attorney’s duty of confidentiality is critical given the sensitive nature of the client attorney relationship. Confidentiality is key to trust and trust is key to an attorney’s success on behalf of a client. The court claims that because the cases for the clients had concluded and attorney client relationship had already been disclosed, the attorney’s duty to maintain client confidentiality must make way for the attorney’s First Amendment rights.
I think the fact that someone could search public records to find out the attorney’s clients, is far less visible than the attorney disseminating that information very publicly on his blog. To me, this sends the wrong message to the public that their attorney can use their information for the purposes of promoting their practice.
Blog Posts are Advertising
Here the court examines each posts individually and sorts them into those that are clearly about positive client results and those that discuss a legal issue. Most of the posts are the former and so the court asserts that the attorney chose to, “commingle sporadic political statements within in self-promotional blog posts sporadic political statements within his self-promotional blog posts in an attempt to camouflage the true commercial nature of his blog.”
The court is determining the attorney’s intent by categorizing his posts. Would that change if half the blog posts had concerned political statements? Why isn’t this the job of the blog reader? What kind of guidance does this give attorneys wanting to share practice information with the public? If the blog is provided a disclaimer as “advertising” then it create a dis-incentive for attorneys wanting to share valuable information about how they practice law because they have to watch over their shoulder to consider what a State Supreme Court Justice might say.
This is an opinion to watch because it is the first of its kind on this issue. While this doesn’t govern California attorneys, it maybe persuasive for California judges. Let us hope another court renders a more helpful decision.