Like a loaded gun in the hands of children, we let lawyers tap on keyboards.  In Virginia, the result is that legal bloggers will now be required to include disclaimers on their blogs, as your right to free speech and expression was left in the hands of Horace Hunter.

Hunter was charged with misconduct for violating professional rules of conduct requiring an advertising disclaimer that states that results depend upon factors unique to each case and that results in one case do not predict similar results in others.

The disclaimer is aimed at preventing potential clients from being misled, generating public mistrust of the justice system or client mistrust of their lawyers.

Hunter argued his blog consists of news and commentary and refused to post the disclaimer as a violation of his free-speech rights.

And Hunter crashed. And burned. And with him, so did you.  The core problem, and one that has fallen through the cracks in much of  the discussion about this sordid case, is that this wasn’t a blawg.  Hunter says otherwise, but Hunter is wrong.  And with his error, so goes all Virginia blawgers down the tubes. 

Horace Hunter wrote about himself and his victories.  He argues that he wanted to use his great wins to make points about the system:

Contrary to you contention, the blog is not entirely self-serving because we discuss a number issues relevant to the criminal justice system that have nothing to do with cases that I have worked on. The problem for me is that as a criminal defense attorney, many of the articles are critical of the government. [Shameless self-promotional garbage deleted] If I had to disclaim the article as an “advertisement”, it would cheapen it.

Note that I deleted a portion of Hunter’s comment that I found flagrantly self-aggrandizing and utterly unnecessary to the comment.  It just blew me away that he couldn’t even leave a comment that didn’t serve some self-promotional purpose. 

Does a disclaimer “cheapen” his discussion of issues critical to the government?  Do hip boots cheapen streetwalkers in hot pants?

Hunter conceded on cross-examination that one purpose of the blog was marketing and that he had not sought the consent of his clients before posting information about the cases — cases he had won, not lost.

One purpose?  Well, that may be accurate, and I won’t claim that Horace Hunter had no other purpose to writing about his great victories other than marketing.  There’s no reason why, in the course of marketing oneself, you can’t throw in some slams against the government, particularly given the nature of the beast.  But let’s not play dumb.  This was marketing first, and whatever collateral benefit might have accrued by way of legal commentary, it wasn’t going to get in the way of marketing.

For a very long time now, I’ve railed against lawyers using the device called a blog as a affirmative marketing weapon.  This isn’t to say that a legitimate blawg can’t have collateral marketing benefits, by demonstrating knowledge about an area of law, but that it’s core purpose isn’t marketing.  It’s time to make a hard distinction: If you write for marketing, then where you write isn’t a blog.  It’s an advertisement. Give it some other name to end this confusion, because while the Virginia bar wrote about blogs, that’s not what they were talking about.

And to add insult to injury, Hunter got slam dunked on a separate issue, that writing about his own cases, his own clients, without their consent violated confidentiality.

[Assistant bar counsel Renu] Brennan presented evidence that at least two people represented by Hunter said they did not want their cases posted on his blog after learning they were there.

Of course, how can Hunter pump his victories without writing about the people who trusted him with their confidences, the protection of their lives and reputations. Contrary to the advice for profit of legal marketers everywhere, whose vision of clients is fodder for the legal marketing machine, our clients do not exist to be used for our own benefit. 

In assessing this decision, Ken Lammers at  CrimLaw writes:

When I became a lawyer I don’t recall being told that I lost my 1st Amendment right to freedom of speech. However, it appears that the Virginia Bar has decided that all lawyers in Virginia have forfeited that right when it comes to blogging about matters that are already a matter of public record.

I remember it quite clearly, when it came to taking the worst thing that ever happened in a client’s life and using it for self-promotion.  Let’s address a false assumption before going farther, that when a lawyer writes about his client, about a case, it’s mere public record.  We are lawyers. We speak for the client. Our words are no different than those uttered by the client himself.  Our impressions, biases, joy and anger are attributable to the client.  For the purposes of the outside world, we are our clients.  This means something.

But this decision isn’t about losing rights. It’s about protecting client confidences and trust.  Sorry, lawyers, but that trumps our right to market ourselves.  Commercial speech doesn’t require strict scrutiny and a compelling state interest, but our duty to clients requires us to keep our stories to ourselves, even if we think we can make a buck off them.

When we write about our clients, we reveal their perspective whether we want to or not.  This may well be our purpose, as we advocate for them and seek to use our voice to further our clients’ goals, and that’s what we, as lawyers, are expected to do. 

But that’s an entirely different use than taking the worst time of our clients’ life and using it to promote ourselves.  We have no right, none, to use our clients for our own advantage, and doing so is an inherent breach of confidence and, frankly, a disgrace.  It is a fundamental violation of trust. It should not happen.

I realize that many, particularly newer lawyers who read the stuff written on the internet, enjoy the inside story of a lawyer talking about his cases.  It’s titillating.  It’s cool, It’s fascinating.  And it fundamentally wrong.  Those lawyers who do it are wrong, and those lawyers who enjoy it are wrong.  There is nothing about a client’s life that is ours to use for our own advantage.

For years, I’ve railed about how marketing is going to be the death of thought, of commentary, of meaningful scrutiny.  The legal marketers hate me for it, as I do nothing to further their business.  For years, I’ve railed against the abuse of client confidences and trust for the benefit of lawyers.  Marketing lawyers hate me for it, as I do nothing to further their business. 

And this is why Horace Hunter lost, and why real blawgers will suffer, will lose their honestly-possessed First Amendment rights, as a consequence.  Are you happy now?