The Supreme Court of Virginia will decide an interesting ethics in lawyer advertising question early next year. (The Supreme Court recently withdrew, without comment or explanation,  new proposed rules on lawyer advertising. We surmise that some of the arguments made on behalf of the First Amendment in these briefs may have had a bearing on the enactment of the proposed changes to the lawyer advertising rules.)

We obtained and reviewed all of the briefs (The links to the briefs are below). Hunter’s brief is authored by Rod Smolla, author of The Law of Lawyer Advertising, (which I commend to your library). This is important to Great Legal Marketing members since a firm understanding of the First Amendment and lawyer advertising rules is critical to maximizing your marketing investments of time and money.

The case arises from a charge of ethical misconduct based on Hunter’s blog, This Week in Richmond Criminal Defense. His blog commentary is on subjects of national legal events, local and state wide events in which Hunter did not participate as counsel for the defendant and, in most cases, facts and results of Hunter’s own cases.

The Bar made two complaints:

  1. Hunter was revealing information that would be embarrassing to his clients when he, without his client’s permission, revealed facts that had been disclosed in a public courtroom during a public proceeding. (Nothing that was actually confidential was revealed, however.)
  2. The blog violated lawyer advertising rules in two respects:
    1. His blog created unjustified expectations about results that could be obtained and;
    2. Didn’t have a Virginia mandated disclaimer about results.

The briefs are fascinating and are, frankly, a "must read" if you are at all interested in lawyer advertising and the First Amendment.


Opening Brief - Hunter contends he doesn't need to post a disclaimer at his site.

Brief of the Virginia State Bar - Contending that not only does Hunter have to post a disclaimer but he is not allowed to report on any case that involved a client, and use his clients name, without his client's permission.

Amicus Brief of the Virginia Press Association (and others) supporting the First Amendment and arguing against the Virginia State Bar.

Amicus Brief of the Thomas Jefferson Center for the Protection of Free Expression - also defending the First Amendment and writing against the position of the Virginia State Bar

First Amendment - Lawyer Blogging Memorandum of Law Prepared by Rod Smolla earlier in the case

Complete Opinion from Virginia Supreme Court

Ben Glass
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Ben is a nationally recognized expert in attorney marketing and the owner of Great Legal Marketing.