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 have

invalidated on First Amendment grounds state bar
rules from at least three states that strictly limited
lawyeradvertising.Areaderreviewingcasessuchas
Alexander v. Cahill, 598 F.3d 79 (2d Cir. 2010)(New
York); Allen, Allen, Allen & Allen v. Williams, 254
F.Supp.2d 614 (E.D. Va. 2003) (Virginia); and Public
Citizen, Inc. v. Louisiana Attorney Disciplinary Bd.,
632 F.3d 212 (5th Cir. 2011) (Louisiana), may
understandably believe that state bar regulations
restricting lawyer advertising have little chance of
survivingconstitutionalreview.

In earlier times, lawyer advertising was

unregulated,andmanylawyersincludingAbraham
Lincolnadvertised. During the 20th Century,
however,allorvirtuallyallU.S.jurisdictionsadopted
ethics rules that largely prohibited lawyer
advertising.

Tosuchareader,therecentdisciplineofVirginia
lawyer Horace Hunter for failure to include a
disclaimeronhisblogmaythenseemashockingjolt.
As a lawyer experienced in defending disciplinary
complaints including those relating to lawyer
advertising, however, I believe the Hunter case
should be more fairly read as a warning to lawyers
thattheyhaveonlytworealchoiceswhentheywish
to advertise their services but face stringent
regulationsintrying todoso:carefullycomplywith
the applicable regulations to avoid prosecution or
bring a preemptive challenge that the lawyer
advertising regulations impose unconstitutional
restrictions on nondeceptive lawyer advertising.
Failure to pursue either of these options leaves the
lawyer in Hunters position: in violation of the rules
andunabletolocateaforuminthestatediscipline
system or in a collateral federal casethat will
seriously consider First Amendment arguments and
invalidate overly restrictive lawyeradvertising
restrictions.

A series of decisions after Batesincluding

Ohralik v. Ohio State Bar Association, 436 U.S. 447,
456 (1978), which upheld a states prohibition
against inperson solicitation; Shapero v. Kentucky
Bar Association, 486 U.S. 466, 472 (1988), which
allowed certain restrictions on lawyer solicitations
mailed to persons known to have specific legal
needs; and Peel v. ARDC, 496 U.S. 91 (1990), which
addresses advertising lawyer specialties and
certificationshave helped flesh out the type and
levelofregulationsthattheFirstAmendmentallows
states to impose on various types of lawyer
advertising.

BackgroundonLawyerAdvertisingRegulations

Theadoptionandenforcementofvirtualblanket
prohibitions on lawyer advertising continued until
1977, when the U.S. Supreme Court held the First
Amendment protected nondeceptive lawyer
advertising as commercial speech in Bates v. State
BarofArizona,433U.S.350,383(1977).

Using Bates and its progeny as guidance, the

ABA has crafted five ABA Model Rules as suggested
regulations for lawyer advertising. Model Rule 7.1
prohibits a lawyer from making any false or
misleading statements or omissionsin advertising
and otherwiseabout the lawyer or the lawyers
services. Model Rule 7.2 states that a lawyer may
advertisebutprohibitsalawyerfrompayingreferral
feesandrequiresalawyeradvertisementtoinclude

the name and office address of at least one lawyer

responsible for the advertisements content. Model
Rule 7.3, in turn, reflects Ohraliks allowance of
prohibitions against inperson solicitation as well as
Shaperos allowance for states to impose greater
restrictionsontargetedlawyersolicitationsthatare
sent to persons known tohave specific legal needs.
Rules7.4and7.5,meanwhile,governwhenalawyer
mayclaimalegalspecialtyandestablishconventions
fornaminglawfirmsrespectively.

Hunter, Virginias disciplinary counsel charged

Hunter, a criminal defense attorney, with several
violations of Virginias ethics rules. Hunter was
ultimately sanctioned for two violations related to
the contents of a blog on his firms website:
disclosing client confidences without client consent
andfailingtoincludeanadvertisingdisclaimeronhis
blog that was required by Virginias rules, but not
theABAModelRules.
Hunters apparent disclosures of client
confidencesfor example, discussing a juvenile
clients case and a clients positive cocaine test in a
blog post about the reliability of the test, both
without client permissionwere likely the more
serious violations that largely determined the
sanction imposed. Frankly, based on what I read in
the disciplinary committees decision, I would not
disputethesefindingsofviolations.

The ABA Model Rules regulating lawyer

advertising are drafted consciously to survive First
Amendment challenge. Certain states, however,
haveelectedtogofurtherandimposemuchgreater
restrictions on lawyer advertising. In Alexander v.
Cahill, Allen Allen, and Public Citizen, the federal
courts invalidated state regulations on lawyer
advertising on the basis that the restrictions were
overly restrictive. Applying the test for non
deceptive commercial speech enunciated in Central
Hudson Gas & Electric Corp. v. Public Service
Commn, 447 U.S. 557, 561 (1980) (a case not
involving lawyer advertising), these federal courts
haveaskedtheregulatingstatetodemonstratethat
the regulation under review (1) promotes a
substantial governmental interest; (2) directly
advances the interest asserted; and (3) is not more
extensivethannecessarytoservethatinterest.

More relevant here, however, was the

disciplinary committees finding that Hunters blog
posts constituted advertisements and provided the
results of specific or cumulative cases and that
Hunter had published those posts without the
disclaimer required for such advertisements. The
Virginia rule that Hunter was alleged to have
violated,Rule7.2(a)(3),statesthatanadvertisement
violatesRule7.1,meaningitisdeemedmisleading,if
it: (3) advertises specific or cumulative case results,
withoutadisclaimerthat(i)putsthecaseresultsina
context that is not misleading; (ii) states that case
results depend upon a variety of factors unique to
eachcase;and(iii)furtherstatesthatcaseresultsdo
not guarantee or predict a similar result in any
futurecaseundertakenbythelawyer.Thedisclaimer
shallprecedethecommunicationofthecaseresults.
When the communication is in writing, the
disclaimer shall be in bold type face and uppercase
letters in a font size that is at least as large as the
largest text used to advertise the specific or
cumulative case results and in the same color and
against the same colored background as the text
used to advertise the specific or cumulative case
results.

Ineachofthethreerecentcases,andinvirtually
every lawyeradvertising case except Florida Bar v.
Went For It, Inc., 515 U.S. 618 (1995) (reviewing a
30day blackout period for personal injury
solicitations),andthemorerecentHarrellv.Florida
Bar, 608 F.3d 1241 (11th Cir. 2010) (reviewing
Floridas prefiling requirement for lawyer
advertisements), federal courts have held that the
statecouldnotsatisfytheCentralHudsontest.Such
decisions generally demonstrate that state
restrictions on lawyer advertising are likely to be
deemedunconstitutionaliftheyaremorestrictthan
thosecontainedintheABAModelRules.
InReHunter
The prosecution of Horace Hunter in In re
Hunter, Virginia State Bar, 3d Dist. Comm., VSB No.
11032084907 (Nov. 8, 2011), stands as something
of a stark contrast to these three federal cases. In

Hunters website had a section that discussed

This Week in Richmond Criminal Defense Law.
Most of the matters discussed in the archive were
Hunters own cases. During the hearing, Hunter

apparentlyalsoadmittedthathisblogpostswerefor
marketingpurposes.

Second Circuit upheld two sentences of a three

sentence disclaimer New York requires for
advertisements containing lawyer certifications but
found the third sentence unconstitutional under
CentralHudson.

Based on this admission and the content of the

posts, the disciplinary panel found the required
disclaimer was a minimal requirement to ensure
Hunters advertising, in other words, blog posts,
would not be misunderstood. That the website
also contained some commentary and issue
discussionsdidnotchangetheprimarynatureofthe
posts, which were advertising. The disciplinary
committee noted that Hunters most recent
proposeddisclaimerwas closetocompliance,but
it nevertheless publicly admonished him, directed
him to post the Rule 7.2(a)(3) disclaimer, and
ordered him to remove all client confidences for
clientswhohadnotgiventheirconsenttotheposts.

If Hunters First Amendment claims did not in

fact receive serious consideration, this treatment
would comport with my own experience in raising
FirstAmendmentgroundstochallengeadisciplinary
charge relating to lawyer advertising. Disciplinary
caseproceduresoftenlackaclearvehicleforraising
andlitigatingconstitutionalargumentsatthestartof
cases. Disciplinary committee members are also
generallyvolunteerlawyers,notexperiencedjudges.
They are not well positioned to or comfortable
considering constitutional arguments. Moreover, a
lawyerfacinganadvertisingrelatedchargehasoften
been given at least one warning and at least one
chance to bring the alleged offending advertising
into compliance, so a committee may feel like the
lawyers obstinacy contributed to the disciplinary
charge. These and other factors likely combine to
meanthatadisciplinaryhearingpanellikelywillnot
give much consideration to a lawyers arguments
that the First Amendment protected otherwise
impermissiblebehavior.

Of note, Hunters defense to the ethics charges

included a 31page brief prepared by First
Amendment scholar, former law school dean, and
now university president Rodney Smolla, arguing
that the First Amendment protected Hunters blog
postsandexcusedhisomissionofthedisclaimer.In
its decision, however, the disciplinary committee
does not mention the First Amendment or Smollas
31pagebrief.
Further, Hunter had previously filed a federal
lawsuit to challenge his disciplinary prosecution on
FirstAmendmentgrounds.TheU.S.DistrictCourtfor
the Eastern District of Virginia dismissed Hunters
case on Eleventh Amendment and Younger
abstention grounds, however, without reaching the
merits of Hunters First Amendment claims. In fact,
thereisnoindicationthatHuntersFirstAmendment
arguments ever received serious consideration on
themerits.

The only real hope a lawyer facing discipline

might have that the First Amendment will receive
seriousconsiderationisthatthestateshighestcourt
could actively review lawyerdiscipline cases (some
do,andsomedonot)and,ifitdoes,thecourtcould
be willing to take a critical look at the rules that
generallythecourtitselfadopted.Tomyknowledge,
thishasnotoccurredinrecentcases.
Of course, the lawyer could bring a suit in
federalcourt.Aspreviouslydiscussed,federalcourts
generallystrikedownstateregulationssubstantially
morestringentthantheABAModelRuleswithlittle
hesitation. But they will likely give serious
consideration to First Amendment arguments
challenging lawyer advertising regulations only if
state discipline proceedings have not commenced.
Once a disciplinary charge is filed, the federal court
is likely to abstain from presiding over the lawyers
federal case pursuant to the Younger abstention
doctrine, which provides that federal courts
generally should not interfere with a pending state

LessonsfromInReHunter
Icannot say that Hunter ultimately would have
prevailedonhisFirstAmendmentargumentsifthose
arguments had been considered. As the recent
decision Hayes v. New York Attorney Grievance
Committee of the Eight Judicial Dist., ___ F.3d ___,
2012 WL 688535 (2d Cir. Mar. 5, 2012),
demonstrates,courtstakeacloselookatdisclaimer
requirements and often use exacting standards to
determinewhatdisclaimersastatebarmayrequire
in lawyer advertisements. In Hayes, in fact, the

prosecutionjust as happened to Hunters federal

claims.

in a preemptive suit, ordinarily in federal court,

before a disciplinary charge is received. Otherwise,
the lawyer may find that he or she faces lengthy,
taxing, and distracting disciplinary proceedings with
little hope that First Amendment arguments will
receivepromptandeffectiveconsideration.

Conclusion
A lawyer seeking to advertise has two real
choices: comply with applicable state regulations
governing lawyer advertising or challenge the rules

MichaelDowneyisaSt.LouislitigatorandethicslawyeratArmstrongTeasdaleLLP.Mikespractice
focuses on representing and advising lawyers and accountants in litigation, and counseling those
professionals on legal, ethics, and risk management matters. Mike also teaches legal ethics as an
adjunctprofessoratWashingtonUniversitySchoolofLawandSt.LouisUniversitySchoolofLaw,and
servesasViceChairoftheABALawPracticeManagementSection.ReachMikeat3143428072or
mdowney@armstrongteasdale.com.2012MichaelDowney.