In addition to having his blog declared advertising, Richmond, VA attorney Horace Hunter was also disciplined for writing about his client’s cases. However, Hunter was able to get this discipline overturned on appeal, on the grounds that he was discussing matters that were both in the public record and for which he had client consent. [ref]Hunter was also aided by the fact that the Virginia Bar didn’t directly take issue with any specific statements about clients he’d made. Rather, the Bar took the position that it was empowered to prohibit attorneys from saying anything about their client’s cases without permission, even if such matters were in the public record. It’s really hard for such broad, prophylactic regulation of truthful speech to pass Constitutional muster – particularly when it targets only one class of speaker, leaving others free to communicate on the matters at issue. A recent Second Circuit decision overturning restrictions on drug company representatives talking with doctors about off-label use presents an analogous situation. United States v. Caronia, 703 F.3d 149 (2nd Cir. 2012).[/ref]
While there may on rare occasions be circumstances where blogging about clients is appropriate, such cases should be few and far between. An attorney’s first and highest loyalty is to the client. There are very, very few cases where an attorney is ethically permitted to speak when to do so would prejudice the client’s interests – and good judgment (which should be the stock in trade of all attorneys) would dictate drawing even tighter limits. If communicating something has the potential to harm – or even embarrass – a current or former client, it shouldn’t be published absent exceptionally good reason.
And no, “but I needed a blog topic today” is not an exceptionally good reason.
Besides the potential to divulge information protected by attorney-client confidentiality, or information which would be embarrassing or prejudicial, attorney-bloggers must also be mindful of the message that writing about clients sends to other clients, potential clients and colleagues.
Faced with this litany of concerns, it’s not surprising that most legal blogs don’t delve into details of specific cases. There’s plenty of room to maneuver and use something learned in a particular case to make a more general point.
Just don’t think that changing names and anonymizing certain details will keep you safe from harm. an Illinois attorney was recently disciplined for writing about clients despite doing just that.[ref]In the Matter of Kristine Ann Peshek, M.R. 23794, (Illinois Supreme Court, May 18, 2010) (complaint; order imposing discipline).[/ref]
Bottom line: there’s plenty to write about without having to discuss your own clients.