20 October 2011

The Virginia State Bar v. Free Speech

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.

To be specific, the VSB has ruled that Horace Hunter, a Virginia lawyer in Richmond, must take all posts from his blog down which refer to that which has happened to his clients in open court and is in the public record, unless he has permission from each client. These things can be written about by every other citizen in the United States, just not Horace. Why not? Because he is the client's attorney.

This is part of a 2 issue argument which Horace has been having with the Bar. First, they wanted him to put a disclaimer on his blog which stated that the results he was talking about were not guarantees of similar results in other cases. On this, as much as I respect Horace's stand on principle, I agree with the Bar. I stated as much back in May when I first discussed this.

However, the second issue seems to have morphed in to a constitution breaker: the Bar insists that Horace has been shorn of his 1st Amendment right to free speech by becoming a lawyer and taking on a client. To be fair, this is a possible reading of the ethics rule which the Bar is enforcing against Horace:
Rule 1.6 Confidentiality of Information

(a) A lawyer shall not reveal information protected by the attorney-client privilege under applicable law or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c).
So, if the Bar can show in each case that the information written about by Horace was embarrassing or detrimental to the individual written about, then it might have a case (on a post by post basis). The implications in the Virginia Lawyers Weekly article seems to be that there weren't any demonstrable detrimental affect and that any embarrassment from the posts seems to have been caused by the Bar in the process of its investigation (which is an interesting lack of clean hands on the Bar's part). Nevertheless, the Bar can fall back on the potentialities and subjective standards written into the ethics rule. "Would be" and "would be likely to be" are incredibly broad turns of phrase. If Ethics Rule 1.6 trumps the Constitution the Bar is free to interpret that language any way it wants to and Horace just has to live with it (and the rest of us do too).

So, what's the Constitution say about all of this? Well, the pertinent part is the 1st Amendment, as imposed on the States through the 14th Amendment. I'm not anywhere near being an expert on this area of the law, but I'm going to offer up some fairly basic analysis through the lens of what I remember from ConLaw back at W&L.

First of all let's establish a three facts. 1) The Virginia State Bar is a State actor. Its own website proclaims it "An agency of the Supreme Court of Virginia." Of course, the Supreme Court of Virginia is a part of the Commonwealth's government per Article VI of the Virginia Constitution. 2) The important State interest is to protect confidential communications between an accused and her attorney. 3) Talking about what happens in court involves all sorts of political speech. After all, this is the place where the laws of the legislature, enforcement by the executive, and interpretation by the courts all meet. It is, as the saying goes, where the rubber meets the road. I'm not sure its political nature makes much difference in determining whether the government can quash it, but if it does it should make it harder for a government actor to do so.

Now, let's run this through the two tests I recall from law school.

The first test I recall is strict scrutiny. Under this test, a government actor seeking to halt free expression must have 1) a compelling government interest to halt the free expression which is enforced by a policy 2) narrowly tailored to achieve the governmental goal and which is 3) the least restrictive means of achieving that goal.

The compelling governmental interest here is to promote the operation of the judicial system by insuring that communications between a defendant and his attorney remain confidential. The government has no valid interest in keeping the activities which occur in open court from becoming public. In fact, this has been held so important that the US Supreme Court reversed a case when a person could not watch voir dire because there were so many potential jurors that there was no space for the person in the courtroom. Presley v. Georgia , JAN10, USSC No. 09-5270.

Keeping in mind the compelling governmental interest of protecting confidential communication between clients and attorneys, the next question becomes, is forbidding an attorney from writing about what happens in open court with his client narrowly tailored to protect confidential communication between the client and the attorney. It seems not. This is not a requirement that the attorney not speak of things told in confidence. This is a requirement that the attorney not speak of things done in an arena that is mandated to be open. US Const. Amend. VI.

As well, forbidding an attorney from discussing matters concerning his client which occurred in open court and are in the court's open record is not the least restrictive way of protecting confidential communications between the client and his attorney. The least restrictive way is to simply forbid the attorney from revealing confidential communications between himself and his client.

Beyond the strict scrutiny test, governmental actors can also emplace time, place, and manner regulations. Whether these are valid depends on a four part test. 1) Is the regulation content neutral? 2) Does the government have a significant interest? 3) Does it leave ample alternatives? 4) Is the regulation narrowly tailored?

In this case, the regulation is not content neutral. It forbids specific actors from discussing specific matters. Attorneys cannot discuss their clients' cases as they took place in the courtroom.

The government does have a significant interest in protecting the privacy of confidential communication between a client and his attorney.

There are no alternatives allowed here. If Horace cannot write about these cases on his blog, he cannot write about them in the newspaper or talk about them on TV or even get on a soap box in the park and speak of them to passers-by.

The regulation is not narrowly tailored. It forbids much communication which is outside the realm of the private client-attorney communication which it has an interest in protecting and forbids it in all places.


Look, I never published the names of any clients on this blog. In fact, I usually masked where things happened and changed facts around in an attempt to talk about what was interesting about a case without attaching the post to a particular client. In fact, you'll notice that I seldom use actual place names anymore (usually substituting mythical Pitcairn County / City). I seldom name other attorney or judges in here and when I do I usually do it in order to praise them (I'd say always, but somebody would find some post I've forgotten from 7 years ago and make me a liar).

This is good policy. However, requiring it is not good constitutional law. I may not like the way Horace publishes matters on his blog. I may even think it counterproductive. However, there is a big difference between speech which is distasteful and/or counterproductive and speech which is so contrary to a necessary public/governmental interest that it should be suppressed by a government actor.

I wish Horace luck in his further defense of his right to free speech.

[addendum] Scott, from Simple Justice, has written a post addressing this and sent me a link to the article in the Richmond Times Dispatch. Scott agrees with the Bar. Respectfully, Scott is wrong. Not identifying one's clients and talking about what happened to them in open court shows respect, a sense of fair play, common decency, and is a good behavioral policy. It is not a compelling governmental interest such that free speech should be suppressed.

And, for anyone thinking that this isn't about free speech concerning matters already entirely in the public domain (not confidences between a client and her attorney), here are the pertinent quotes from the Richmond Times Dispatch:
Can newspapers report on criminal trials? she asked. "Yes, absolutely, they can. Can (Hunter) then go back and report on his own cases? No, he cannot — absolutely not. Not without his client's consent."

"It doesn't matter if the information (he) reports is already in the public domain."
The Bar is, by its own counsel, admitting that it is suppressing the speech of lawyers concerning matters in the public domain. It can't be much clearer than that.

Is the Bar's position good behavioral policy? Yes. Is it good constitutional policy? Absolutely not. A governmental agency should never be able to suppress speech solely on the grounds that it disfavors that speech.


Ben Glass said...

Rod Smolla's brief in favor of Hunter was terrific and is available at


Hope he continues his battle.

Bill said...

There's a prong to this that you didn't address. The ethics rule bars "disclosure" of information detrimental to the client. Discussing what is already a matter of public record cannot be construed as "disclosure".