Horace Hunter And The Sham Lawyer Advertising Disclaimer

The legal blogosphere spent a good deal of time discussing Horace F. Hunter last October, when the Virginia State Bar sanctioned him for the terrible ethical violation of truthfully describing his own successes — which were all a matter of public record — on his blog. Said the Washington Post:

Bar authorities contend the blog constitutes advertisement and should include a disclaimer saying it’s an ad. Hunter argues the blog is news and commentary, and the bar’s attempt to get him to tack on a disclaimer is a violation of his First Amendment rights.

At least that’s what all of us, including Carolyn Elefant, thought it was about, but when it came time for the actual hearing the bar apparently shifted (according to Horace Hunter) its focus from the lack of a disclaimer to the failure to obtain client consent before re-publicizing the matters that were already on public records. Hunter lost, then appealed, and according to Bob Ambrogi just won his appeal on the client consent issue but lost it on the disclaimer. So we’re back where we started: a strict application of the disclaimer rule. If a lawyer in Virginia mentions one of their cases, they need to follow the rule to the letter.

I’m not a fan of the disclaimers, and I don’t think Hunter should have been sanctioned. As I wrote in the comments on Carolyn’s site back in October: 

No potential client genuinely believes, “gosh, lawyer got X acquitted for murder, and I’m on trial for murder, so I’ll be acquitted.” Not one.

If a lawyer explicitly promises a result — we will get you money for your pain, we will get you acquitted, etc — that’s a problem and should be prohibited entirely, but merely talking about your prior cases is an entirely different ball of wax.

Prohibiting lawyers from talking about their cases just makes the legal profession as a whole more opaque to non-lawyers. Requiring lawyers add a “disclaimer” to something that didn’t even make any sort of statements worthy of “disclaiming” is ludicrous and, hopefully, will not survive court review.

There was then a spirited debate in the comments, including some curmudgeonly remarks from Scott Greenfield (who followed up on his blog) about the need for the rule. Other blogs chimed in as well; I tend to agree with Gyi Tsakalakis that the issue is one of false and misleading statements, not of advertising versus public commentary, and it’s not an issue that generic disclaimers would fix. We’re probably in the minority, though. Sharon Nelson, for example, says “I also agree that there must be prominent disclaimers to inform prospective clients that all cases are fact dependent.”

Some of this case sounds like a tempest in a teapot. Why couldn’t he, as Andrew Flusche argued, just “put a one-sentence disclaimer at the top of that page and any other similar ones?” But that’s not the point. It’s not just an argument over putting a one-line disclaimer on a post. To borrow a turn of phrase from Bruce Schneier (“Security theater refers to security measures that make people feel more secure without doing anything to actually improve their security.”), it’s the difference between ethics theater and ensuring honest legal marketing.

The enforcement action against Horace Hunter is ethics theater. How can I say that with such confidence? Consider the actual Virginia rule:

 an advertisement violates this Rule if it … advertises specific or cumulative case results, without a disclaimer that (i) puts the case results in a context that is not misleading; (ii) states that case results depend upon a variety of factors unique to each case; and (iii) further states that case results do not guarantee or predict a similar result in any future case undertaken by the lawyer. The disclaimer shall precede the communication of the case results. 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.

Bolding mine; look at it closely. The disclaimer “shall precede the communication of the case results.” Let’s take a look at some recent “case results” of the largest and most prominent law firms that practice in Virginia:

And guess what: each of them violated the rule while discussing their case results. McGuireWoods got the closest to compliance by at least having the disclaimer, but they put it after the case results. Public sanctions for you all, my friends.

But my guess is that none of them have any reason to worry, because the rule is ethics theater, a meaningless gesture that is selectively enforced against an arbitrarily chosen solo or small firm as a way of creating the appearance of effective ethics rules that are actually enforced. 

Truth is, the rule was and remains pointless. Take a look at one of LeClairRyan’s articles about reversing an award for a wrongfully terminated emergency medicine doctor. It begins with a disclaimer that follows the Virginia rule:

CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE AND DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE

To which I say: so what? What hypothetical client out there didn’t know that cases were different but now realizes there’s no guarantee of success in any legal matter? And what’s to stop the lawyer from later implying or outright stating to the client some form of promise or assurance or guarantee of a particular outcome?

If Virginia wanted to ensure honest legal marketing, they would ditch the specifics about the disclaimer, focus on the actual text of legal advertising, and then mandate that every new client, for every new matter, sign some standard form agreement affirming the attorney made no guarantees, like this:

The Attorney and Client state that the Attorney has made no promise or guarantee as to the successful resolution or eventual outcome of the civil claims and that this agreement is not based upon any such promises or anticipated results.

Will that help confused clients truly understand the absence of a guarantee? Maybe, maybe not, but it will mean a lot more than some silly ALL-CAPS introduction on every blog post. I frankly don’t think that sort of disclaimer will do much either — in the vast majority of situations clients either recognize that a lawyer can’t guarantee a result or they don’t, and no disclaimer will change that — but at least it would be a lot closer to Virginia’s claimed interest in the matter.

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  • shg

    The irony of your post is that criminal defendants regularly believe that the lawyer who beat a murder case once will do it again for them. How do I know this? Because I practice criminal law and they’ve told me. Many times. Over and over. Just as they point to a story in the paper about some guy beating the rap or getting a sweet deal, and exlaiming, “see, and I didn’t do anything that bad. I should win too.” All the time.

    These aren’t always the brightest folks. They tend to get a bit desperate and grasp at straws. They often lack the ability to think conceptually and tend to misextrapolate from wholly irrelevant stories, or engage in any number of logical fallacies that a smart lawyer like you, Max, wouldn’t. But they aren’t a smart lawyer like you, Max. They get it wrong, but still they believe.

    We protect clients, even the stupid ones. Especially the stupid ones. And even if we can’t clean up the vast cesspool of the internet in its entirety, just as we can’t solve every murder, that doesn’t mean we don’t try to keep it as clean as we can or solve as many murders as possible.

    As for Horace, my issue was that he called his advertising a blog, and the discplinary authority issues its decision without distinguishing between blogs and lawyer marketing. Horace did this in an effort to sneak his marketing past the disciplinary authority as if he was just breaking some news, and in doing so, gave us language that hurt legitimate bloggers who aren’t writing flagrantly self-promotional marketing material and pretending it’s not. If Horace wants to market, then let him play by the marketing rules, but don’t smear blogs to save his self-aggrandizing ass.

    • http://www.litigationandtrial.com/ Max Kennerly

      That’s one of my points: even you, sitting there in person, telling them “I can’t guarantee you’ll beat this, nor can that lawyer you read about in the paper, nobody can,” and they’ll believe it nonetheless. I have potential clients convinced that their soft tissue injury, the one they never treated for, is worth a million or more. (“There’s this lady who spilled McDonald’s coffee on herself…”) The disclaimer is wholly irrelevant to this situation. It’s ethics theater, it’s not a real solution to the problem of unrealistic client expectations (or of deceptive advertising).

      I think Horace was on the wrong track claiming he had an unfettered First Amendment right to advertise himself, but I also don’t think much of this distinction either way. We’re lawyers. Everything we write can, to some extent, be construed as advertising ourselves and our legal knowledge. I’d rather not leave the decision of advertising-vs-not-advertising to bar associations, not least because they’ll do exactly what they did here: call Hunter’s advertising “advertising” while ignoring big law firms’ advertising as “news.” I’d rather the rules just make sense for everybody, and the big issue is one of deception and false advertising, not one of a one-line disclaimer that everyone (including potential clients) sees as pro forma.

      • shg

        So let’s end advertising for lawyer altogether. The caselaw (Central Hudson) already defines comercial speech, that which discusses the availability or quality of goods or services, and we can eliminate the ambiguity problem by including in the definition that any speech that includes commercial speech, even if inextricably intertwined with protected speech, is regulated.

        Problem solved.

        • http://www.litigationandtrial.com/ Max Kennerly

          Why is ending it the only possibility? Regulate it all reasonably. No deception. Done.

        • shg

          Deception is in the eye of the beholder. One man’s well-intended puffery is another’s deception. Would it kill lawyers to stay far away from deception? Would it kill them to get business on merit rather than empty adjectives and facile omissions? There is no other way to stop the race to the bottom.

          It might put Gyi out of business, but he can always get a real job.

        • http://www.litigationandtrial.com/ Max Kennerly

          “Deception” is in the eye of the beholder but “marketing” is not? Under your rule, the bar makes one subjective judgment about whether a blog is “marketing” and then another about whether it’s “deception.” We’re not going to get rid of subjectivity in assessing ethical violations. I’d rather we focus on the real issue – deception – instead of having committees of lawyers at big corporate firms who don’t read much on the internet draw vague, amorphous lines between marketing and not-marketing.

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        • http://gyitsakalakis.com/ Gyi Tsakalakis

          Are you hiring?

          Seriously though, let’s consider a couple of communications about lawyer’s services:

          “Licensed to practice in the state of New York for over 25 years.”

          Marketing? Deceptive?

          “President of the New York Criminal Trial Attorneys Association.”

          Marketing? Deceptive?

          “Certified Criminal Trial Attorney by the New Jersey Supreme Court”

          Marketing? Deceptive?

          “In my experience handling over 200 criminal trials, I have never seen such an egregious miscarriage of justice.”

          Marketing? Deceptive?

          “In winning over 200 acquittals, I have found that the ability to build a rapport with the jury is one of the most important components to having success at trial.”

          Marketing? Deceptive?

      • http://gyitsakalakis.com/ Gyi Tsakalakis

        +1 for ethics theater, +2 for everything can be construed as advertising.

        I still say no false or misleading is the best we can do. Otherwise down the rabbit hole we go with all sorts of odd, vague, unworkable rules that don’t really ever achieve the goals for which they were designed.

        Instead of trying to codify every single communication by a lawyer about her services, we should focus on actually enforcing false and misleading.

  • Carolyn ELEFANT

    I don’t like disclaimers. But my point in the Hunter case is that if you write a blog that’s really an ad in disguise, then you have less First Amendment protection. If you don’t want to disclaim, don’t write a blog that’s really marketing copy. BTW that is what Hunters blog was. He used it only to post about his firms positive results abd portrayed it as news. Once the regulators were on to him, you’ll notice that he tossed in other news articles as well. Now if Hunter had listed his past representative cases (labelled ad such, not as news) then the VA disclaimer is a bit more like overkill in that context. My real beef in the blog case is that Hunters blog wasn’t a blog and since it was pure marketing, he dudnt have a leg to stand on

    • http://www.litigationandtrial.com/ Max Kennerly

      I agree on his motives, but I’m uncomfortable with drawing a distinction between “marketing copy” and “blogs.” I have no confidence that any bar association anywhere will reach reasonable and consistent conclusions about which blogs are “marketing” and which are “commentary” — the bar will simply stamp less powerful interests as marketing and more powerful interests as “news.”

      Look at the examples I posted from large firms: they are pure marketing efforts no different from Hunter’s, and yet the bar is totally silent.

      • http://twitter.com/GirlsGuidetoLS Alison Monahan

        This distinction really blurs when you consider “content marketing.” Is it a blog? Is it marketing? Frankly, it’s all “marketing,” in theory, even the parts that are more objective. If the point of content marketing is to consistently provide useful content to people so they come to like and trust you (and eventually give you money), I think this “blog” vs. “marketing copy” distinction is a distinction without a difference.

        Maybe it makes lawyers feel better to say “Oh, that’s ‘marketing copy’” while sniffing into their scotch, but the reality is that anyone who’s blogging to build a reputation is marketing themselves. And there’s nothing wrong with that.

        • http://www.litigationandtrial.com/ Max Kennerly

          Exactly.

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      • Chip Orr

        Re the biglaw “news”/marketing v. plaintiff firm “blog”/marketing: The law is so friggin’ paternalistic. Max is correct, of course, that there is no difference, none, between the biglaw examples he gave (and EVERY biglaw firm does the same thing) and the typical plaintiffs’ firm “blog” that reports as “news” only its successes and/or the problems with, e.g., the drug about which it is trying to build an inventory.

        But bar associations never go after biglaw, in part because biglaw is well-represented in bar associations, but also in large part because no one really thinks the typical biglaw client can’t tell the difference between “news” and “marketing.” Like Max, I have clients who believe they are entitled to millions of dollars when the particulars of their case warrant not much more than “nuisance” value. But when I was with biglaw, my clients could afford to pay my ridiculous hourly rate as well as the hourly rates of my bosses and colleagues, all of whom diligently churned away. Biglaw clients don’t need no paternalism from no bar association.

        • http://www.litigationandtrial.com/ Max Kennerly

          There’s some truth to that, but the rule makes no exception for big law clients. Either they’re going to have this dumb rule we enforce against everyone uniformly or they can’t have the dumb rule. The VA bar can’t have it both ways.

          More to the point, I don’t think the disclaimer does anything at all for confused or easily misled clients; no one has come up with a cogent article for how a client who doesn’t understand that each case is unique will suddenly understand that upon reading a one-line disclaimer in ALL-CAPS.

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