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Washington Lawyer

Bar Counsel: Jurisdictions May Vary, Misconduct Does Not

From Washington Lawyer, April 2014

By Dolores Dorsainvil

Illustrated by Mick WigginsOn January 13, 2014, Bar Counsels for the local jurisdictions (District of Columbia, Maryland, and Virginia) convened to provide practitioners with the latest developments in attorney disciplinary matters. The overarching theme was that although each jurisdiction differs in how its disciplinary system operates, the misconduct addressed is similar. The Bar Counsels discussed a number of topics, ranging from the differences in the attorney discipline procedure and statistics in their respective jurisdictions, to high-profile matters and the latest trends.

One of the trends discussed was technology. With the advent of various social media platforms, more and more lawyers are finding avenues to use these mediums in their business models.[1] Virginia Bar Counsel discussed the case of Hunter v. Virginia State Bar,[2] where the Virginia court was presented with the constitutional issue of whether it was an attorney’s First Amendment right to publish successful case results in a blog post on his law firm’s Web site, even without the disclaimer required by the Virginia State Bar Rules of Professional Conduct.[3] The court had to consider whether the attorney’s blog was commercial speech and whether an attorney can discuss publicly available information related to a client matter without the client’s consent.

In his blog titled “This Week in Richmond Criminal Defense,” the majority of Mr. Hunter’s blog posts discussed favorable outcomes[4] received in his clients’ matters, without any disclaimers that put case results in a context that is not misleading and explains that there are no guarantees, and that each case’s outcomes depends on a number of factors. See Virginia State Bar Rule of Professional Conduct 7.1(b). The Virginia State Bar initiated an investigation and concluded that Mr. Hunter violated the rules pertaining to lawyer advertisement, specifically, Virginia Rules of Professional Conduct 7.1 and 7.2,[5] because it deemed that his advertisements were misleading and did not provide the necessary disclaimers.

The Virginia State Bar also concluded that discussing client matters and revealing information that was either embarrassing or detrimental to the client without the client’s consent was a violation of Virginia Rule of Professional Conduct Rule 1.6.[6] In his defense, Mr. Hunter stated that the blog was not a legal advertisement but rather was political speech concerning the judicial system, and that it was important to use the real names of his clients so as to provide his audience with an accurate description of what transpired in the legal matter. Mr. Hunter defended against the Virginia Rule of Professional Conduct 1.6 charge and stated that the information that he posted was public information that had already been disseminated.

The Virginia State Bar imposed a public admonition with terms including a requirement that Mr. Hunter remove “case specific” content from his blog and post a disclaimer as required under Virginia Rule of Professional Conduct 7.1(b). Mr. Hunter appealed to the Circuit Court for the City of Richmond, and it affirmed the Third District Committee’s finding that under Virginia Rule of Professional Conduct 7.2(b), Mr. Hunter was required to post disclaimers when publishing case results. It, however, reversed the District Committee’s finding that Mr. Hunter violated Virginia Rule of Professional Conduct 1.6 by posting embarrassing and detrimental information about his clients without their consent. The Circuit Court held that the application of Virginia Rule of Professional Conduct 1.6 violated Mr. Hunter’s First Amendment right to free speech. The matter then went to the Supreme Court of Virginia, and, in a 5–2 decision, the court affirmed the Public Admonition with terms imposed on Mr. Hunter for failing to publish the required disclaimers and rejected Mr. Hunter’s First Amendment argument and held that his blog post was commercial speech. The court did not make a finding of a violation of Virginia Rule of Professional Conduct 1.6.[7] After having filed a petition for a writ of certiorari to the U.S. Supreme Court that was ultimately denied, Mr. Hunter entered into a consent order with the bar reinstating the public admonition with terms.

Social media is a great marketing tool that, if used ethically, has many rewarding benefits. Lawyers, however, must be mindful of the pitfalls associated with social media that could result in the violation of the ethical rules. Here in the District of Columbia, the rules governing lawyer advertising are straightforward. So even though the District of Columbia doesn’t have a specific rule requiring disclaimers, D.C. Rule of Professional Conduct 7.1(a) dictates lawyers must only make truthful statements that are not misleading in their advertisements, and that these statements cannot create an unjustified expectation about the results that the lawyer can achieve for a prospective client.[8]

For example, a statement such as “I’ve won every jury trial I’ve ever had” may be technically true, but for a prospective client to appreciate a lawyer’s skillset, it would be important to know that the lawyer has only had three jury trials. Similarly, it is a violation of D.C. Rule of Professional Conduct 7.5[9] to create a Facebook page where you state your firm name as “Dorsainvil & Associates” if, in fact, you are a solo practitioner and do not have any associates within your firm.

Although Mr. Hunter’s Virginia case didn’t make a finding of a 1.6 violation, an attorney in the District of Columbia must be mindful that, when making posts to various social media platforms, he or she may expose confidential or proprietary information in violation of D.C. Rule of Professional Conduct 1.6.[10] This is especially common when a lawyer posts specific information about a recent success in a matter, such as a favorable verdict, or when a lawyer shares an anecdote about his or her challenges either in court, with opposing counsel, or with a difficult client. These types of posts are unauthorized disclosures that violate a lawyer’s duty to keep a client’s matter confidential as required under Rule 1.6, which states that a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, or unless there is an exception to the rule.[11]

The methods of lawyer advertisement and marketing may have changed significantly over the years, but principles of truth in advertising and protection of client secrets remain the same.
 
Dolores Dorsainvil is a senior staff attorney with the Office of Bar Counsel.


Notes
[1] Lawyers are using platforms such as LinkedIn, Twitter, and Facebook to share information about updates in their law firm.
[2] 285 Va. 485, ___ S.E.2d ___ (2013).
[3] Virginia State Bar Rule of Professional Conduct 7.1(b) states,
“[a] communication 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.”
[4] In these criminal matters, Mr. Hunter’s clients were either: 1) found not guilty, 2) had their charges reduced or dismissed, or 3) entered into a plea bargain to an agreed upon disposition.
[5] The amendments effective July 1, 2013, deleted Rule 7.2.
[6] Confidentiality of Information. Virginia Rule 1.6(a) states,
“[a] lawyer shall not reveal information protected by the attorney–client privilege under applicable law or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c).”
[7] In her majority opinion, Justice Cleo E. Powell reasoned that Mr. Hunter’s posts all dealt with public information about his cases that had concluded.
[8] D.C. Rule 7.1(a) states,
“[a] lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it:
(1) Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading; or
(2) Contains an assertion about the lawyer or the lawyer’s services that cannot be substantiated.”
[9] D.C. Rule 7.5 Firm Names and Letterheads states,
“(a) A lawyer shall not use a firm name, letterhead, or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1.
(b) A law firm with offices in more than one jurisdiction may use the same name or other professional designation in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located.
(c) The name of a lawyer holding a public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm.
(d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.”
[10] D.C. Rule 1.6(a) & (b)–Confidentiality of Information states,
“(a) Except when permitted under paragraph (c), (d), or (e), a lawyer shall not knowingly:
(1) reveal a confidence or secret of the lawyer’s client;
(2) use a confidence or secret of the lawyer’s client to the disadvantage of the client;
(3) use a confidence or secret of the lawyer’s client for the advantage of the lawyer or of a third person. 
(b) “Confidence” refers to information protected by the attorney–client privilege under applicable law, and “secret” refers to other information gained in the professional relationship that the client has requested be held inviolate, or the disclosure of which would be embarrassing, or would be likely to be detrimental, to the client.”
[11] See D.C. Rule 1.6(b); See also In re Gonzalez, 773 A.2d 1026 (D.C. 2001) (holding that disclosures made in a motion to withdraw failed to maintain the clients’ confidentiality and secrets).  

Disciplinary Actions Taken by the Board on Professional Responsibility

Original Matters
IN RE STEPHANIE Y. BRADLEY. Bar No. 288910. January 17, 2014. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Bradley by consent.

IN RE KAREN J. MILLER. Bar No. 417139. January 17, 2014. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Miller by consent.

Disciplinary Actions Taken by the District of Columbia Court of Appeals

Original Matters
IN RE MARIA I. GONZALEZ. Bar No. 439718. January 30, 2014. The D.C. Court of Appeals granted Gonzalez’s petition for reinstatement. 

Reciprocal Matters
IN RE SANDY CHANG. Bar No. 989203. January 23 2014. In a reciprocal matter from the U.S. Bankruptcy Court for the Eastern District of Virginia and the U.S. District Court for the District of Maryland, the D.C. Court of Appeals imposed reciprocal discipline and suspended Chang for two years with fitness. Chang had been disciplined in multiple jurisdictions as a result of misconduct in over 21 bankruptcy cases where she appeared as the attorney of record.

IN RE DAVID H. LOOMIS. Bar No. 394857. January 9, 2014. In a reciprocal matter from California, the D.C. Court of Appeals imposed substantially different reciprocal discipline and disbarred Loomis. The Supreme Court of California suspended Loomis from practice for two years, but stayed part of the suspension in favor of three years of probation with additional requirements. The California court’s discipline was based on Loomis’s stipulation to intentional misappropriation of entrusted client funds.

Interim Suspensions Issued by the District of Columbia Court of Appeals

IN RE MICHAEL J. MASON. Bar No. 358684. January 17, 2014. Mason was suspended on an interim basis based upon his conviction of a serious crime in the Circuit Court of Spotsylvania County, Virginia.

IN RE BARRY J. NACE. Bar No. 130724. January 17, 2014. Nace was suspended on an interim basis based upon discipline imposed in West Virginia.

Informal Admonitions Issued by the Office of Bar Counsel

IN RE VICKI C. BRYANT. Bar No. 494977. January 3, 2014. Bar Counsel issued Bryant an informal admonition. While serving as a court-appointed attorney representing a client in his appeal of a criminal matter, Bryant failed to reasonably inform the client about the status of the matter and failed to explain the matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Rules 1.4(a) and 1.4(b).

IN RE ELVIN SLOAN. Bar No. 455198. January 7, 2014. Bar Counsel issued Sloan an informal admonition. While retained to represent four clients in a landlord–tenant matter, Sloan (1) failed to serve the clients with skill and care commensurate with that generally afforded to clients by other lawyers in similar matters; (2) failed to keep the clients reasonably informed about the status of a matter and to explain the matter to the extent reasonably necessary to permit the clients to make informed decisions regarding the representation; (3) failed to withdraw from the representation of the clients once discharged; (4) in connection with the termination of representation, failed to take timely steps to the extent reasonably practicable to protect the clients’ interests; and (5) failed to make reasonable efforts to ensure that a nonlawyer’s conduct (over whom he had direct supervisory power) was compatible with the professional obligations of the lawyer. Rules 1.1(a), 1.1(b), 1.4(a), 1.4(b), 1.16(a)(3), 1.16(d), and 5.3(b).

 
The Office of Bar Counsel compiled the foregoing summaries of disciplinary actions. Informal Admonitions issued by Bar Counsel and Reports and Recommendations issued by the Board on Professional Responsibility are posted at www.dcattorneydiscipline.org. Most board recommendations as to discipline are not final until considered by the court. Court opinions are printed in the Atlantic Reporter and also are available online for decisions issued since August 1998. To obtain a copy of a recent slip opinion, visit
www.dccourts.gov/internet/opinionlocator.jsf.