Client Confidentiality and Blogging: Where’s the Line for Lawyers?

Nov 19, 2018 | Blog

When you’re involved in a case, you learn a lot about your clients. A lot. Some may argue that you might even end up knowing them a little too well. So well, in fact, that maybe you think that their situation creates a cautionary tale (and a good marketing piece) for your blog. When it comes to client confidentiality and blogging, where’s the line for lawyers?


Hunter v. Virginia State Bar Created Far-Reaching Implications

Horace Hunter, a trial lawyer and active blogger, creates blog posts related to the cases in which he successfully advocated for his clients. However, there are times when Mr. Hunter would use a significant amount of detail about his clients. And the Virginia State bar noticed Mr. Hunter’s blog…and that it did not include applicable disclaimers required in Virginia for attorney advertising.

Initially, the Virginia State Bar found that Mr. Hunter violated both client confidentiality rules and attorney advertising rules. Mr. Hunter fought the bar’s findings all the way to the Virginia Supreme Court. Regarding the information related that could be considered a core component of client confidentiality, the majority held that the First Amendment provides protection for a lawyer who identifies clients by name as long as that information has already been public (as it is in court records). The Court held that lawyers receive just as much protection as a member of the public or media would if they are repeating information in the public record…even if that information doesn’t paint the client in a good light.

The Court also held that Mr. Hunter’s blog mixed commercial and political speech and that meant that there was no First Amendment protection because case-related blog posts were inherently misleading. Mr. Hunter was required to post disclaimers that comply with Virginia’s attorney advertising rules for any post that was case-related.

Just Because You Can, Doesn’t Mean You Should

In Hunter, it’s important to note that the information Mr. Hunter used regarding cases was information already found as part of public record. Client confidentiality didn’t apply. Yet, just because there is certain information provided as part of public record doesn’t necessarily mean that you should highlight it, especially if it involves specific identifying information that could embarrass or cause problems for your client.

Of course, it’s also important for you to read the ethical rules in your jurisdiction to know whether blogging about completed legal cases and addressing facts made public (let alone the name of your client) would violate client confidentiality rules or any other rules.