Jan L. Jacobowitz and Kelly Rains Jesson
INTRODUCTION. “Nothing is more noble, nothing more venerable than fidelity. Faithfulness and truth are the most sacred excellences and endowments of the human mind.” – Marcus Tullius Cicero
Although Cicero shared his timeless wisdom in ancient Rome long before the Internet and the digital age became a part of the practice of law, fidelity remains the hallmark of the attorney-client relationship. Fidelity aside, the Internet has changed the manner in which attorneys and clients connect. Today, social media is “permanently altering the way that potential clients . . . evaluate their need for legal services and identify and select the lawyer best-suited to serve those needs.” Arguably, attorneys are remiss if they are not entering cyberspace to attract new clients.
In fact, the 2012 American Bar Association (ABA) Legal Technology Survey Report indicates that fifty-five percent of law firms surveyed have a presence on Facebook, and thirty-eight percent of attorneys have their own Facebook page. Some of the other major social networking options for attorneys include Twitter, LinkedIn, and blog websites. Twitter use among attorneys and law firms has nearly doubled in one year. LinkedIn use is prevalent among firms and individual attorneys with eighty-eight percent of firms and ninety-five percent of individual attorneys retaining accounts. Finally, the survey “not surprisingly” shows that the number of attorneys writing blogs has also grown. Among law firms and individual attorneys, twenty-two percent and nine percent, respectively, maintain professional blogs. Nearly 40 percent of attorneys stated that their blogs generated new business for them.
Given the lower percentage of attorneys writing blogs relative to those attorneys posting on Facebook and LinkedIn, blogging may be the newest marketing frontier for attorneys and the one where an attorney or firm may currently have the least competition. Many bloggers link their blogs to other social media websites and to their firm websites, thereby further enhancing their Internet marketing presence.
Horace Hunter is one such attorney who not only writes a blog, but also links the blog to his firm website. The blog is titled “This Week in Richmond Criminal Defense,” and it chronicles cases and issues arising in the criminal justice system. Hunter primarily writes about his own clients and cases, although he has indicated that his goal in writing the blog is to expose issues of public importance. Hunter conceded that the blog also serves a commercial purpose.
Hunter’s blog became the subject of national attention this year, but not because of the issues that he writes about. Rather, the blog became another test case that demonstrates the challenges that arise in applying the traditional legal ethics rules on confidentiality and advertising to the Internet in the new digital age practice of law. The Virginia State Bar found Hunter’s blog to be problematic in two ways: as a form of misleading advertising and as a violation of client confidentiality. Why? The short answer is that many of the blog articles were written about Hunter’s own clients, some containing the clients’ actual names, without their consent and without a required attorney advertising disclaimer warning the reader that the case results being profiled were not necessarily results that the reader could expect in his own case.
As the case wound its way through the Virginia state courts and ultimately into a petition for writ of certiorari to the United States Supreme Court, which was recently denied, many First Amendment and legal ethics lawyers debated the Virginia Bar’s position. The Supreme Court of Virginia held that Hunter must add a disclaimer to his blog articles, which remains the subject of some debate. However, perhaps the more controversial position is the Supreme Court of Virginia’s holding that to deny Hunter the ability to speak about his clients’ cases, after the case concludes and based upon what is found in the public record, is to deny Hunter his First Amendment right of free speech.
This Article will focus on the First Amendment confidentiality issue, as this part of the decision arguably undermines the long-standing legal ethics rule of confidentiality and strikes at the heart of the attorney-client relationship as it has been defined and has evolved since the late nineteenth century. Ultimately, the central issue for the legal profession is whether an attorney’s relationship with a client, and the simultaneous duty of confidentiality owed to the client, survives the completion of the case, notwithstanding what may appear in a public record and regardless of First Amendment considerations.
In an attempt to provide necessary context for the discussion, this Article will explore the various aspects of the definition of attorney-client relationship and review the history, evolution, and moral underpinnings of the ethical rule of client confidentiality. Next, this Article will look at these contextual puzzle pieces in conjunction with Virginia’s Rule 1.6 and the Hunter case in an effort to determine whether the Supreme Court of Virginia has attempted to add a piece to the confidentiality puzzle, or instead, has designed its own new confidentiality rubric. Finally, this Article will discuss the juxtaposition of the rule of confidentiality with the First Amendment and offer a perspective on the potential impact of the Supreme Court of Virginia’s decision on the legal profession and the public.
AUTHORS. Jan L. Jacobowitz is a Lecturer in Law and Director of the Professional Responsibility & Ethics Program at the University of Miami School of Law. Kelly Rains Jesson is a 2012 graduate of the University of Miami School of Law where she was a Fellow in the Professional Responsibility & Ethics Program.