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Attorney E-Newsletter

March 2013

Virginia Supreme Court Wrestles with Commercial Speech, Confidentiality, and Law Blogs

We have previously reported on the case of Horace Frazier Hunter, a Virginia lawyer who uses his law blog (or blawg) to publicize his cases. The case poses an interesting question: does the First Amendment protect a lawyer’s right to publicize information from his clients’ cases, even over their objection? According to a Virginia court, apparently so.

Hunter published a blog on his law firm website, in which he reported on cases, including his own. He featured only cases where he obtained favorable results, and often gave the names of his clients in the reports. He did not seek the clients’ permission to use their information in this way. At least one client testified that he objected to the publication of his case, and several more expressed their opposition to a Virginia bar investigator. Hunter stated a range of motivations for the publication of the blog, one of which was marketing his services.

The Virginia State Bar found that Hunter violated Rule 1.6, regarding confidentiality, by disclosing client information in a way that was likely to be embarrassing or detrimental to the clients without their consent. It also found that he violated Rules 7.1 and 7.2 regarding advertising and communications about a lawyer’s services, and required a disclaimer consistent with Rule 7.2(a)(3) on every post.

Hunter appealed, arguing that his blog was free speech protected by the First Amendment. The circuit court held that the bar’s interpretation of Rule 1.6 violated the First Amendment, but upheld the findings as to Rules 7.1 and 7.2. It imposed a public admonition on Hunter, but required only a single limited disclaimer on the site.

Hunter appealed to the Virginia Supreme Court, which on February 28 issued an opinion. By a 7-2 majority, the court determined that Hunter’s blog posts were commercial speech, and that the small quantity of articles addressing issues other than his own cases did not take the bulk of the blog, devoted to discussion of his successful outcomes, outside the scope of commercial speech. The majority determined that the bar had a legitimate state interest in protecting the public from misleading communications, and upheld the finding that Hunter’s publications violated the rules. It remanded the case for requirement of disclaimers consistent with Rule 7.2(a)(3).

As to the Rule 1.6 issue, the Virginia Supreme Court upheld the lower court’s finding that Hunter’s conduct did not violate Rule 1.6 regarding confidentiality. It noted that all of Hunter’s posts involved cases that were finished, and set forth only information that was in the public record. The court concluded that the privacy interest of clients in avoiding embarrassment did not outweigh the First Amendment concerns involved. The court stated, “A lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom.”

Two justices joined in a dissenting opinion that disagreed with the majority’s characterization of Hunter’s posts as commercial speech. The dissent noted that in Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 385 (1973), the United States Supreme Court defined commercial speech as speech which “does no more than propose a commercial transaction." Because Hunter’s blog also contained political speech, the dissenters opined that the First Amendment prevents the bar from regulating it.

An extensive critique of the decision appears at the Legal Ethics Forum. On his website, Hunter presents his own view of the case and states, “The case will now likely head to the United States Supreme Court for review.” Stay tuned.

Top Ten – Worldwide Edition

We’ve discussed a lot of year-end top stories lists, both for Pennsylvania and nationwide. Since, as we’ve noted, the practice of law is becoming more and more global, we should also note the international news. Professor Laurel Terry of Penn State Dickinson School of Law has compiled a list of the "Top Ten International Legal Profession Stories of 2012." Her list:

  1. Alternative Business Structure Licenses Go Live in the United Kingdom
  2. Influence of the Troika – International Monetary Fund, the European Central Bank, and the European Commission
  3. Market Liberalization in Countries Such as Korea, Singapore, and Malaysia
  4. Market Access Contraction in Brazil and Vietnam
  5. Developments in India’s Ongoing Unauthorized Practice of Law Saga
  6. Financial Action Task Force (FATF) and Gatekeeper Developments Concerning Money Laundering and Terrorism Financing
  7. U.S. Action (and inaction) Regarding the Accreditation of Foreign Law Schools and Full Admission Applications from Foreign Lawyers
  8. New Resources Available Regarding Legal Practice and Admission Outside the U.S.
  9. Formation of an International Network of Legal Regulators
  10. Significant Legal Profession Developments in Australia, Canada, the European Union (EU), and the United Kingdom (U.K.), Among Other Places

More information and links can be found here.

For those interested in international aspects of the practice of law, Professor Terry maintains an extensive collection of links and resources here. As we have noted before, the idea of the Disciplinary Board issuing a legal ethics newsletter originated with an email suggestion from Professor Terry around 2003.

Stop on Red (Flags)

A Pittsburgh lawyer is out $20,000 after a Federal judge determined that he “ignored red flags” in proceeding with a client’s case, after it became apparent that a shift in the client’s account of the facts had undermined his expert’s opinion.

Jason Schiffman represented Regis Ellis in a lawsuit against a firearms manufacturer, alleging that a firearm had exploded in his hand. Schiffman retained an expert to testify in support of his client’s claim. At some point, however, the client offered a different version of the facts, and Schiffman failed to alert the expert to the difference. In a deposition, the expert testified that the altered fact situation would change his opinion on the matter. Nonetheless, Schiffman proceeded with the case.

After dismissing the case, U.S. District Judge Alan N. Bloch ordered Schiffman to pay $20,000 in sanctions. He wrote, "Counsel's errors are more troubling than his characterization suggests, and his conduct can be described more accurately as that of an attorney who ignored red flags surrounding the veracity and plausibility of his client's story [and] lodged allegations without having reasonable belief that they were well-grounded in fact."[1]

Sanctions under Rule 11, Federal Rules of Civil Procedure, are the most common response when a lawyer pursues a frivolous case. In serious cases, professional discipline may also result under Rule 3.1 of the Rules of Professional Conduct, which states:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.

Duquesne’s Lewis Joins Board; Bevilacqua, Lawrence Take Chairs

The Supreme Court of Pennsylvania has made several appointments to the Disciplinary Board.

Gabriel L. I. Bevilacqua, of Philadelphia, has been appointed Chair of the Disciplinary Board for a one-year term commencing April 1, 2013. He is General Counsel to The American Board of Surgery and to The American Board of Plastic Surgery; and, Of Counsel to the law firm Saul Ewing, LLP. Gerald Lawrence, Jr., will serve as Vice-Chair. He is a shareholder and head of the Pennsylvania office of the law firm of Lowey Dannenberg Cohen & Hart, P.C., Montgomery County.

Tracey McCants Lewis, Assistant Clinical Professor at Duquesne University School of Law, has been appointed to a term on the Disciplinary Board.

Professor Lewis, a graduate of Gannon University and the Duquesne University School of Law, is the Assistant Director of Clinical Legal Education at the School of Law. Prior to joining the Law School faculty full time, she was an Adjunct Professor in the Law Clinic, a clerk for the Honorable Max Baer of the Supreme Court of Pennsylvania, and practiced with K&L Gates LLP.

Howell K. Rosenberg of Philadelphia has been appointed to a second term on the Board.

Libhart Takes IOLTA Reins

The Supreme Court has appointed Stephanie S. Libhart as the new Executive Director of the Pennsylvania Interest on Lawyer Trust Accounts (IOLTA) Board. She replaces Al Azen, who retired in December after serving as the Board’s Executive Director for its first 23 years of existence.

Libhart, who holds a Master of Studies in Law Degree from the University of Pittsburgh School of Law, has served as IOLTA’s assistant executive director since 2008. Before joining IOLTA, she worked for the Administrative Office of Pennsylvania Courts’ Judicial Automation Department, and prior to that for the Pennsylvania School Boards Association in the governmental relations department.

The Portal Will Open Soon

Online registration for Active and Inactive attorneys, introduced last year by the Disciplinary Board, has been a popular feature.  Nineteen percent of Pennsylvania attorneys renewed their registration online for 2011-2012, and 28 percent for 2012-2013.

This year, PA’s Unified Judicial System Portal[2] will open May 6 for attorneys to complete the Annual Form and securely pay the annual fee.  An email notice will be sent only to attorneys who have provided an email address and/or have registered online. The notices will come from news@padisciplinaryboard.org and administrator@pacourts.us. Please add both email addresses to your safe sender list or make sure it can be received by your email server. Please use the following link[3] for online registration: http://ujsportal.pacourts.us/.

If you have registered online in the past and have forgotten your password or PIN, go to http://ujsportal.pacourts.us, click on login, and then click on “Forgot my Password” or “Forgot my PIN” to reset them.[4]

Last month we reported on the new mailing address [5] for Attorney Registration Payment Processing, effective in May.  Reader Daniel B. Evans offers a useful suggestion:  “For small offices (like mine), the most important place to change the address is in QuickBooks®©, Quicken®©, or other®© check-writing software.”[6]

The Disciplinary Board Gets Social

As reported in last month’s newsletter, social media continues to be a popular topic among legal professionals. The Disciplinary Board is now joining the social sphere with its own Twitter feed. Follow us at https://twitter.com/DBoardPa. We aren’t sure where we’re leading, but we hope you’ll follow.

Let Us Know

Got a tip, a link, a correction, a question, a comment, an observation, a clarification, a wisecrack, an idea you’d like to see addressed? We are always glad to hear from you. Write us at comments@padisciplinaryboard.org.

[1] A 21-gun salute to ABA Journal reader “Now Jerry Brown,” who commented, “You don’t find a Plaintiff of that caliber today. In decrying this case as frivolous was the defense willing to go a few rounds? Is this a case where the judge would have to hear the evidence in chambers? Of course, both sides don’t want to go barreling down the litigation path half-cocked before they get a handle on the issues. . . I think I’ve covered most of the bullet points.” We all know what triggered that response. It’s automatic for some of us.

[2] Transport through the Portal to other worlds or dimensions is not a currently available option.

[3] But not yet!

[4] Like you’ve never done that before.

[5] P.O. Box 3313, Lancaster, PA 17604, in case you missed it.

[6] ®©s added by the smart-aleck editor.