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:
- Williams & Connolly obtained a grant of cert;
- Hunton & Williams helped obtain dismissal of an environmental suit;
- Williams Mullen obtained a settlement to help disabled people receive government benefits;
- McGuireWoods successfully negotiated a bank merger;
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.