By: David Wildman
On February 28, 2013, the Supreme Court of Virginia ruled that an attorney’s blog postings that named clients who were defendants in criminal proceedings, without permission, qualified as protected free speech under the First Amendment. Key to the court’s decision was the fact that the defendants’ names were a matter of public record, because “[i]t is settled that attorney speech about public information from cases is protected by the First Amendment.” As such, the lawyer was insulated from charges of violating ethics rules meant to protect client privacy.
At issue was Virginia’s Rule 1.6(a), which bars an attorney from revealing “information gained in the professional relationship … the disclosure of which would be embarrassing or would be likely to be detrimental to the client unless the client consents after consultation.” The Virginia State Bar interpreted the rule to cover public information as well as information protected by attorney-client privilege. The court, however, agreed with attorney Horace Hunter that such an interpretation would violate the First Amendment, stating “[t]o the extent that the information is aired in a public forum, privacy considerations must yield to First Amendment protections.”
Moreover, public dissemination, the court noted, trumps considerations of “whether the practice in question [furthers] an important or substantial governmental interest unrelated to the suppression of expression and whether the limitation of First Amendment freedoms is no greater than is necessary or essential to the protection of the particular governmental interest involved” (internal quotes and citations omitted). The court also refrained from confining its holding to non-commercial attorney speech, holding that Rule 1.6(a) could not bar Hunter from disclosing client names (when a matter of public record) even though it found the blog posts themselves to be commercial speech.
The opinion in full:
http://www.courts.state.va.us/opinions/opnscvwp/1121472.pdf