Originally published on the ABA Section of Litigation, First Amendment & Media Litigation website (March 2012)

Lawyer Advertising, In re Hunter, and the First Amendment

By Michael Downey

In the last 10 years, federal courts haveinvalidated on First Amendment grounds state barrules from at least three states that strictly limitedlawyeradvertising.AreaderreviewingcasessuchasAlexander v.Cahill,598F.3d79 (2dCir.2010)(NewYork); Allen, Allen, Allen & Allen v. Williams, 254F.Supp.2d614 (E.D.Va.2003) (Virginia); andPublicCitizen, Inc. v. Louisiana Attorney Disciplinary Bd.,632 F.3d 212 (5th Cir. 2011) (Louisiana), mayunderstandably believe that state bar regulationsrestricting lawyer advertising have little chance ofsurvivingconstitutionalreview.

Tosuchareader,therecentdisciplineofVirginialawyer Horace Hunter for failure to include adisclaimeronhisblogmaythenseemashockingjolt.As a lawyer experienced in defending disciplinarycomplaints including those relating to lawyeradvertising, however, I believe the Hunter caseshouldbemore fairly readasawarning to lawyersthattheyhaveonlytworealchoiceswhentheywishto advertise their services but face stringentregulations intrying todoso:carefullycomplywiththe applicable regulations to avoid prosecution orbring a preemptive challenge that the lawyeradvertising regulations impose unconstitutionalrestrictions on nondeceptive lawyer advertising.Failure topursueeitherof theseoptions leaves thelawyer inHuntersposition: inviolationof therulesandunabletolocateaforuminthestatedisciplinesystem or in a collateral federal casethat willseriously considerFirstAmendmentargumentsandinvalidate overly restrictive lawyeradvertisingrestrictions.

BackgroundonLawyerAdvertisingRegulations

In earlier times, lawyer advertising wasunregulated,andmany lawyersincludingAbrahamLincolnadvertised. During the 20th Century,however,allorvirtuallyallU.S.jurisdictionsadoptedethics rules that largely prohibited lawyeradvertising.

Theadoptionandenforcementofvirtualblanketprohibitions on lawyer advertising continued until1977,when theU.S. Supreme Court held the FirstAmendment protected nondeceptive lawyeradvertising as commercial speech in Bates v. StateBarofArizona,433U.S.350,383(1977).

A series of decisions after BatesincludingOhralikv.OhioStateBarAssociation,436U.S.447,456 (1978), which upheld a states prohibitionagainst inperson solicitation; Shapero v. KentuckyBar Association, 486 U.S. 466, 472 (1988), whichallowed certain restrictions on lawyer solicitationsmailed to persons known to have specific legalneeds;andPeelv.ARDC,496U.S.91 (1990),whichaddresses advertising lawyer specialties andcertificationshave helped flesh out the type andlevelofregulationsthattheFirstAmendmentallowsstates to impose on various types of lawyeradvertising.

Using Bates and its progeny as guidance, theABAhascrafted fiveABAModelRulesassuggestedregulations for lawyer advertising. Model Rule 7.1prohibits a lawyer from making any false ormisleading statements or omissionsin advertisingand otherwiseabout the lawyer or the lawyersservices. Model Rule 7.2 states that a lawyer mayadvertisebutprohibitsalawyerfrompayingreferralfeesandrequiresa lawyeradvertisementto include

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thenameandofficeaddressofat leastone lawyerresponsible for theadvertisements content.ModelRule 7.3, in turn, reflects Ohraliks allowance ofprohibitionsagainst inpersonsolicitationaswellasShaperos allowance for states to impose greaterrestrictionsontargeted lawyersolicitationsthataresent topersonsknown tohavespecific legalneeds.Rules7.4and7.5,meanwhile,governwhenalawyermayclaimalegalspecialtyandestablishconventionsfornaminglawfirmsrespectively.

The ABA Model Rules regulating lawyeradvertising are drafted consciously to survive FirstAmendment challenge. Certain states, however,haveelectedtogofurtherandimposemuchgreaterrestrictions on lawyer advertising. In Alexander v.Cahill, Allen Allen, and Public Citizen, the federalcourts invalidated state regulations on lawyeradvertising on the basis that the restrictions wereoverly restrictive. Applying the test for nondeceptive commercial speechenunciated inCentralHudson Gas & Electric Corp. v. Public ServiceCommn, 447 U.S. 557, 561 (1980) (a case notinvolving lawyer advertising), these federal courtshaveaskedtheregulatingstatetodemonstratethatthe regulation under review (1) promotes asubstantial governmental interest; (2) directlyadvances the interestasserted;and (3) isnotmoreextensivethannecessarytoservethatinterest.

Ineachofthethreerecentcases,andinvirtuallyevery lawyeradvertising case except Florida Bar v.Went For It, Inc., 515U.S. 618 (1995) (reviewing a30day blackout period for personal injurysolicitations),andthemorerecentHarrellv.FloridaBar, 608 F.3d 1241 (11th Cir. 2010) (reviewingFloridas prefiling requirement for lawyeradvertisements), federal courts have held that thestatecouldnotsatisfytheCentralHudsontest.Suchdecisions generally demonstrate that staterestrictions on lawyer advertising are likely to bedeemedunconstitutionaliftheyaremorestrictthanthosecontainedintheABAModelRules.

InReHunterThe prosecution of Horace Hunter in In re

Hunter,VirginiaStateBar,3dDist.Comm.,VSBNo.11032084907 (Nov.8,2011), standsas somethingof a stark contrast to these three federal cases. In

Hunter, Virginias disciplinary counsel chargedHunter, a criminal defense attorney, with severalviolations of Virginias ethics rules. Hunter wasultimately sanctioned for two violations related tothe contents of a blog on his firms website:disclosing client confidenceswithout client consentandfailingtoincludeanadvertisingdisclaimeronhisblog that was required by Virginias rules, but nottheABAModelRules.

Hunters apparent disclosures of clientconfidencesfor example, discussing a juvenileclientscaseandaclientspositivecocaine test inablog post about the reliability of the test, bothwithout client permissionwere likely the moreserious violations that largely determined thesanction imposed.Frankly,basedonwhat I read inthe disciplinary committees decision, I would notdisputethesefindingsofviolations.

More relevant here, however, was thedisciplinary committees finding that Hunters blogposts constituted advertisements and provided theresults of specific or cumulative cases and thatHunter had published those posts without thedisclaimer required for such advertisements. TheVirginia rule that Hunter was alleged to haveviolated,Rule7.2(a)(3),statesthatanadvertisementviolatesRule7.1,meaningitisdeemedmisleading,ifit: (3)advertisesspecificorcumulativecase results,withoutadisclaimerthat(i)putsthecaseresultsinacontext that is notmisleading; (ii) states that caseresultsdependupon a varietyof factorsunique toeachcase;and(iii)furtherstatesthatcaseresultsdonot guarantee or predict a similar result in anyfuturecaseundertakenbythelawyer.Thedisclaimershallprecedethecommunicationofthecaseresults.When the communication is in writing, thedisclaimer shallbe inbold type faceanduppercaseletters ina font size that isat leastas largeas thelargest text used to advertise the specific orcumulative case results and in the same color andagainst the same colored background as the textused to advertise the specific or cumulative caseresults.

Hunters website had a section that discussedThis Week in Richmond Criminal Defense Law.Most of thematters discussed in the archivewereHunters own cases. During the hearing, Hunter

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apparentlyalsoadmittedthathisblogpostswereformarketingpurposes.

Basedon thisadmissionand thecontentof theposts, the disciplinary panel found the requireddisclaimer was a minimal requirement to ensureHunters advertising, in other words, blog posts,would not be misunderstood. That the websitealso contained some commentary and issuediscussionsdidnotchangetheprimarynatureoftheposts, which were advertising. The disciplinarycommittee noted that Hunters most recentproposeddisclaimerwasclosetocompliance,butit nevertheless publicly admonished him, directedhim to post the Rule 7.2(a)(3) disclaimer, andordered him to remove all client confidences forclientswhohadnotgiventheirconsenttotheposts.

Ofnote,Huntersdefense to theethicschargesincluded a 31page brief prepared by FirstAmendment scholar, former law school dean, andnow university president Rodney Smolla, arguingthat the First Amendment protected Hunters blogpostsandexcusedhisomissionofthedisclaimer. Inits decision, however, the disciplinary committeedoesnotmention theFirstAmendmentorSmollas31pagebrief.

Further, Hunter had previously filed a federallawsuit to challenge his disciplinary prosecution onFirstAmendmentgrounds.TheU.S.DistrictCourtforthe Eastern District of Virginia dismissed Hunterscase on Eleventh Amendment and Youngerabstentiongrounds,however,without reaching themeritsofHuntersFirstAmendmentclaims. In fact,thereisnoindicationthatHuntersFirstAmendmentarguments ever received serious consideration onthemerits.

LessonsfromInReHunterIcannot say thatHunterultimatelywouldhave

prevailedonhisFirstAmendmentargumentsifthosearguments had been considered. As the recentdecision Hayes v. New York Attorney GrievanceCommitteeof theEight JudicialDist.,___F.3d___,2012 WL 688535 (2d Cir. Mar. 5, 2012),demonstrates,courtstakeaclose lookatdisclaimerrequirements and often use exacting standards todeterminewhatdisclaimersastatebarmayrequirein lawyer advertisements. In Hayes, in fact, the

Second Circuit upheld two sentences of a threesentence disclaimer New York requires foradvertisements containing lawyer certifications butfound the third sentence unconstitutional underCentralHudson.

If Hunters First Amendment claims did not infact receive serious consideration, this treatmentwould comportwithmy own experience in raisingFirstAmendmentgroundstochallengeadisciplinarycharge relating to lawyer advertising. Disciplinarycaseproceduresoftenlackaclearvehicleforraisingandlitigatingconstitutionalargumentsatthestartofcases. Disciplinary committee members are alsogenerallyvolunteerlawyers,notexperiencedjudges.They are not well positioned to or comfortableconsidering constitutional arguments. Moreover, alawyerfacinganadvertisingrelatedchargehasoftenbeen given at least one warning and at least onechance to bring the alleged offending advertisinginto compliance, so a committeemay feel like thelawyers obstinacy contributed to the disciplinarycharge. These and other factors likely combine tomeanthatadisciplinaryhearingpanel likelywillnotgive much consideration to a lawyers argumentsthat the First Amendment protected otherwiseimpermissiblebehavior.

The only real hope a lawyer facing disciplinemight have that the First Amendment will receiveseriousconsiderationisthatthestateshighestcourtcould actively review lawyerdiscipline cases (somedo,andsomedonot)and,ifitdoes,thecourtcouldbe willing to take a critical look at the rules thatgenerallythecourtitselfadopted.Tomyknowledge,thishasnotoccurredinrecentcases.

Of course, the lawyer could bring a suit infederalcourt.Aspreviouslydiscussed,federalcourtsgenerallystrikedownstateregulationssubstantiallymorestringentthantheABAModelRuleswith littlehesitation. But they will likely give seriousconsideration to First Amendment argumentschallenging lawyer advertising regulations only ifstate discipline proceedings have not commenced.Onceadisciplinarycharge is filed, the federalcourtis likely toabstain frompresidingover the lawyersfederal case pursuant to the Younger abstentiondoctrine, which provides that federal courtsgenerally shouldnot interferewithapending state

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prosecutionjust as happened to Hunters federalclaims.

ConclusionA lawyer seeking to advertise has two real

choices: comply with applicable state regulationsgoverning lawyer advertisingor challenge the rules

in a preemptive suit, ordinarily in federal court,before adisciplinary charge is received.Otherwise,the lawyer may find that he or she faces lengthy,taxing,anddistractingdisciplinaryproceedingswithlittle hope that First Amendment arguments willreceivepromptandeffectiveconsideration.

MichaelDowney isaSt.Louis litigatorandethics lawyeratArmstrongTeasdaleLLP.Mikespracticefocuses on representing and advising lawyers and accountants in litigation, and counseling thoseprofessionals on legal, ethics,and riskmanagementmatters.Mikealso teaches legal ethicsasanadjunctprofessoratWashingtonUniversitySchoolofLawandSt.LouisUniversitySchoolofLaw,andservesasViceChairoftheABALawPracticeManagementSection.ReachMikeat3143428072ormdowney@armstrongteasdale.com.2012MichaelDowney.