1

PRESENT: All the Justices

HORACE FRAZIER HUNTER

OPINION BY

v. Record No. 121472 JUSTICE CLEO E. POWELL

February 28, 2013

VIRGINIA STATE BAR, 

EX REL. THIRD DISTRICT COMMITTEE

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

Kenneth R. Melvin, Alfred D. Swersky,

and Von L. Piersall, Jr., Judges Designate

In this appeal of right by an attorney from a Virginia 

State Bar (“VSB”) disciplinary proceeding before a three judge 

panel appointed pursuant to Code § 54.1-3935, we consider 

whether an attorney’s blog posts are commercial speech, whether 

an attorney may discuss public information related to a client 

without the client’s consent, and whether the panel ordered the 

attorney to post a disclaimer that is insufficient under Rule 

7.2(a)(3) of the Virginia Rules of Professional Conduct.

I. FACTS AND PROCEEDINGS

Horace Frazier Hunter, an attorney with the law firm of 

Hunter & Lipton, PC, authors a trademarked blog1 titled “This 

Week in Richmond Criminal Defense,” which is accessible from his 

law firm’s website, www.hunterlipton.com. This blog, which is 

 1 A “blog” is a shortened, colloquial reference for the term 

“weblog,” and is defined as “ ‘a Web site that contains an 

online personal journal with reflections, comments, and often 

hyperlinks provided by the writer; also: the contents of such a 

site.’ ” White v. Baker, 696 F.Supp.2d 1289, 1310 (N.D. Ga. 

2010) (quoting Merriam-Webster Online Dictionary, 

http://www.merriam-webster.com/dictionary/blog (last visited 

January 31, 2013)).
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not interactive, contains posts discussing a myriad of legal 

issues and cases, although the overwhelming majority are posts 

about cases in which Hunter obtained favorable results for his 

clients. Nowhere in these posts or on his website did Hunter 

include disclaimers.

As a result of Hunter’s blog posts on his website, the VSB 

launched an investigation. During discussions with the VSB 

about whether his blog constituted legal advertising, Hunter 

wrote a letter to the VSB offering to post a disclaimer on one 

page of his website:

“This Week in Richmond Criminal Defense is not an 

advertisement[;] it is a blog. The views and 

opinions expressed on this blog are solely those 

of attorney Horace F. Hunter. The purpose of 

these articles is to inform the public regarding 

various issues involving the criminal justice 

system and should not be construed to suggest a 

similar outcome in any other case.”

However, the negotiations stalled and no disclaimers were posted 

at that time. 

On March 24, 2011, the VSB charged Hunter with violating 

Rules 7.1, 7.2, 7.5,2 and 1.6 by his posts on this blog. 

Specifically, the VSB argued that he violated rules 7.1 and 7.2 

because his blog posts discussing his criminal cases were 

 2 The District Committee ultimately did not find by clear 

and convincing evidence that Hunter violated Rule 7.5 and 

dismissed that charge.
3

inherently misleading as they lacked disclaimers.3

 The VSB also 

asserted that Hunter violated Rule 1.6 by revealing information 

that could embarrass or likely be detrimental to his former 

clients by discussing their cases on his blog without their 

consent.

In a hearing on October 18, 2011, the VSB presented 

evidence of Hunter’s alleged violations. The VSB presented a 

former client who testified that he did not consent to 

information about his cases being posted on Hunter’s blog and 

believed that the information posted was embarrassing or 

detrimental to him, despite the fact that all such information 

had previously been revealed in court. The VSB investigator 

testified that other former clients felt similarly. The VSB 

also entered all of the blog posts Hunter had posted on his blog 

to date. At that time, none of the posts entered contained 

disclaimers. Of these thirty unique posts, only five discussed 

legal, policy issues. The remaining twenty-five discussed 

cases. Hunter represented the defendant in twenty-two of these 

cases and identified that fact in the posts. In nineteen of 

these twenty-two posts, Hunter also specifically named his law 

firm. One of these posts described a case where a family hired 

 3 Although some of Hunter’s blog posts now contain 

disclaimers, not all do and the disclaimers that are present 

were not added until after the VSB brought disciplinary charges 

against Hunter.
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Hunter to represent them in a wrongful death suit and the 

remaining twenty-one of these posts described criminal cases. 

In every criminal case described, Hunter’s clients were either 

found not guilty, plea bargained to an agreed upon disposition, 

or had their charges reduced or dismissed.

At the hearing, Hunter testified that he has many reasons 

for writing his blog - including marketing, creation of a 

community presence for his firm, combatting any public 

perception that defendants charged with crimes are guilty until 

proven innocent, and showing commitment to criminal law. Hunter 

stated that he had offered to post a disclaimer on his blog, but 

the offered disclaimer was not satisfactory to the VSB. Hunter 

admitted that he only blogged about his cases that he won. He 

also told the VSB that he believed that using the client’s name 

is important to give an accurate description of what happened. 

Hunter told the VSB that he did not obtain consent from his 

clients to discuss their cases on his blog because all the 

information that he posted was public information.

Following the hearing, the VSB held that Hunter violated 

Rule 1.6 by “disseminating client confidences” obtained in the 

course of representation without consent to post. Specifically, 

the VSB found that the information in Hunter’s blog posts “would 

be embarrassing or be likely to be detrimental” to clients and 

he did not receive consent from his clients to post such 
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information. The VSB further held that Hunter violated Rule 

7.1. The VSB’s conclusion that Hunter’s website contained legal 

advertising was based on its factual finding that “[t]he 

postings of [Hunter’s] case wins on his webpage advertise[d] 

cumulative case results.” Moreover, the VSB found that at least 

one purpose of the website was commercial. The VSB further held 

that he violated Rule 7.2 by “disseminating case results in 

advertising without the required disclaimer” because the one 

that he proposed to the VSB was insufficient. The VSB imposed a 

public admonition with terms including a requirement that he 

remove case specific content for which he has not received 

consent and post a disclaimer that complies with Rule 7.2(a)(3) 

on all case-related posts.

Hunter appealed to a three judge panel of the circuit court 

and the court heard argument. The court disagreed with Hunter 

that de novo was the proper standard of review and instead 

applied the following standard: “whether the decision is 

contrary to the law or whether there is substantial evidence in 

the record upon which the district committee could reasonably 

have found as it did.” The court further ruled that the VSB’s 

interpretation of Rule 1.6 violated the First Amendment and 

dismissed that charge. The court held VSB’s interpretation of 

Rules 7.1 and 7.2 do not violate the First Amendment and that 

the record contained substantial evidence to support the VSB’s 
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determination that Hunter had violated those rules. The court 

imposed a public admonition and required Hunter to post the 

following disclaimer: “Case results depend upon a variety of 

factors unique to each case. Case results do not guarantee or 

predict a similar result in any future case.” This appeal 

followed.

II. ANALYSIS

A. Whether “[t]he Ruling of the Circuit Court finding a 

violation of Rules 7.1(a)(4) and 7.2(a)(3) conflicts with the 

First Amendment to the Constitution of the United States.”

Rule 7.1(a)(4), which is the specific portion of the Rule 

that the VSB argued that Hunter violated, states:

(a) A lawyer shall not, on behalf of the lawyer 

or any other lawyer affiliated with the lawyer or 

the firm, use or participate in the use of any 

form of public communication if such 

communication contains a false, fraudulent, 

misleading, or deceptive statement or claim. For 

example, a communication violates this Rule if 

it:

. . . .

(4) is likely to create an unjustified 

expectation about results the lawyer can achieve, 

or states or implies that the lawyer can achieve 

results by means that violate the Rules of 

Professional Conduct or other law.

The VSB also argues that Hunter violated the following 

subsection of Rule 7.2(a)(3):

(a) Subject to the requirements of Rules 7.1 and 

7.3, a lawyer may advertise services through 
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written, recorded, or electronic communications, 

including public media. In the determination of 

whether an advertisement violates this Rule, the 

advertisement shall be considered in its 

entirety, including any qualifying statements or 

disclaimers contained therein. Notwithstanding 

the requirements of Rule 7.1, an advertisement 

violates this Rule if it:

. . . .

(3) 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.

In response to these allegations, Hunter contends that 

speech concerning the judicial system is “quintessentially 

‘political speech’” which is within the marketplace of ideas. 

Hunter asserts that the Supreme Court of the United States has 

twice declined to answer whether political speech is transformed 

into commercial speech simply because one of multiple motives is 

commercial. Specifically, he argues that his blog posts are not 

commercial because 

(1) the [Supreme Court of the United States’] 

formal commercial speech definitions focus 
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heavily on whether the speech does no more than 

propose a commercial transaction; (2) the 

[Supreme Court of the United States’] commercial 

speech decisions, to the extent that they discuss 

motivation at all, have focused on whether the 

speech is solely driven by commercial interest; 

(3) the [Supreme Court of the United States] has 

repeatedly insisted that the existence of a 

commercial motivation does not disqualify speech 

from the heightened scrutiny protection it would 

otherwise deserve; (4) the [Supreme Court of the 

United States] has warned that when commercial 

and political elements of speech are inextricably 

intertwined, the heightened protection applicable 

to the political speech should be applied, lest 

the political speech be chilled; and (5) the 

constitutional policy arguments that undergird 

the reduction of protection for commercial speech 

have no persuasive force when the content of the 

speech is political.

The VSB responds that Hunter’s blog posts are inherently 

misleading commercial speech. 

“Whether the inherent character of a statement places it 

beyond the protection of the First Amendment is a question of 

law over which . . . this Court . . . exercise[s] de novo 

review.” Peel v. Atty. Registration & Disciplinary Comm’n, 496 

U.S. 91, 108 (1990). An appellate Court must independently 

examine the entire record in First Amendment cases to ensure 

that “ ‘a forbidden intrusion on the field of free expression’ ” 

has not occurred. Bose Corp. v. Consumers Union of United 

States, Inc., 466 U.S. 485, 499 (1984) (quoting New York Times 

Co. v. Sullivan, 376 U.S. 254, 284-86 (1964)).

Turning to Hunter’s argument that his blog posts are 
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political, rather than commercial, speech, we note that “[t]he 

existence of ‘commercial activity, in itself, is no 

justification for narrowing the protection of expression secured 

by the First Amendment.’ ” Bigelow v. Virginia, 421 U.S. 809, 

818 (1975) (quoting Ginsburg v. United States, 383 U.S. 463, 474 

(1966)). However, when speech that is both commercial and 

political is combined, the resulting speech is not automatically 

entitled to the level of protections afforded political speech. 

Board of Trustees of the State University of New York v. Fox, 

492 U.S. 469, 474 (1989).

While it is settled that attorney advertising is commercial 

speech, Bates v. State Bar of Arizona, 433 U.S. 350, 363-64

(1977), Bates and its progeny were decided in the era of 

traditional media. In recent years, however, advertising has 

taken to new forms such as websites, blogs, and other social

media forums, like Facebook and Twitter. See generally Spirit 

Airlines, Inc. v. United States Dep’t of Transp., 687 F.3d 403 

(D.C. Cir. 2012); QVC Inc. v. Your Vitamins Inc., 439 Fed. Appx. 

165 (3d Cir. 2011); Athleta, Inc. v. Pitbull Clothing Co., 2013 

U.S. Dist. LEXIS 6867 (C.D. Cal. Jan. 7, 2013). 

Thus, we must examine Hunter’s speech to determine whether 

it is commercial speech, specifically, lawyer advertising.

Advertising, like all public expression, may be 

subject to reasonable regulation that serves a 

legitimate public interest. To the extent that 
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commercial activity is subject to regulation, the 

relationship of speech to that activity may be 

one factor, among others, to be considered in 

weighing the First Amendment interest against the 

governmental interest alleged. Advertising is 

not thereby stripped of all First Amendment 

protection. The relationship of speech to the 

marketplace of products or of services does not 

make it valueless in the marketplace of ideas.

Bigelow, 421 U.S. at 826 (internal citations omitted). Simply 

because the speech is an advertisement, references a specific 

product, or is economically motivated does not necessarily mean 

that it is commercial speech. Bolger v. Youngs Drug Products 

Corp., 463 U.S. 60, 67 (1983). “The combination of all these 

characteristics, however, provides strong support for the . . .

conclusion that [some blog posts] are properly characterized as 

commercial speech” even though they also discuss issues 

important to the public. Id. at 67-68 (emphasis in original).

Certainly, not all advertising is necessarily commercial, 

e.g., public service announcements. See id. at 66 (holding 

“[t]he mere fact that these pamphlets are conceded to be 

advertisements clearly does not compel the conclusion that they 

are commercial speech”). However, all commercial speech is 

necessarily advertising. See Webster's Third New International 

Dictionary 31 (1993) (defining “advertisement” as “a calling 

attention to or making known[;]an informing or notifying[;] a 

calling to public attention[;] a statement calling attention to 

something[;] a public notice; esp[ecially] a paid notice or 
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announcement published in some public print (as a newspaper, 

periodical, poster, or handbill) or broadcast over radio or 

television”). Indeed, the Supreme Court of the United States 

has said that “[t]he diverse motives, means, and messages of 

advertising may make speech ‘commercial’ in widely varying 

degrees.” Bigelow, 421 U.S. at 826.

Here, Hunter’s blog posts, while containing some political 

commentary, are commercial speech. Hunter has admitted that his 

motivation for the blog is at least in part economic. The posts 

are an advertisement in that they predominately describe cases 

where he has received a favorable result for his client. He 

unquestionably references a specific product, i.e., his 

lawyering skills as twenty-two of his twenty-five case related 

posts describe cases that he has successfully handled. Indeed, 

in nineteen of these posts, he specifically named his law firm 

in addition to naming himself as counsel.

Moreover, the blog is on his law firm’s commercial website 

rather than an independent site dedicated to the blog. See

Howard J. Bashman, How Appealing Blog (Feb. 11, 2013, 9:40 AM), 

http://howappealing.law.com (an independent blog by a 

Pennsylvania appellate attorney that is accessible through 

Law.com at http://legalblogwatch.typepad.com/). The website 
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uses the same frame4 for the pages openly soliciting clients as 

it does for the blog, including the firm name, a photograph of 

Hunter and his law partner, and a “contact us” form. The 

homepage of the website on which Hunter posted his blog states 

only:

Do you need Richmond attorneys?

Hunter & Lipton, CP [sic] is a law practice in 

Richmond, Virginia specializing in litigation 

matters from administrative agency hearings to 

serious criminal cases. As experienced Richmond 

attorneys, we bring a genuine desire to help 

those who find themselves in difficult 

situations. Our partnership was founded on the 

idea that everyone, no matter what the 

circumstance, deserves a zealous advocate to 

fight on his or her behalf. 

People make mistakes, and may even find 

themselves in situations not of their own making. 

And for these people, the system can be 

extraordinarily unforgiving and unjust—but you do 

not have to face this system alone. 

If you find yourself in a difficult legal 

situation, the Richmond attorneys of Hunter & 

Lipton, LLP would consider it a privilege to 

represent you. Please contact our office with 

any questions or to schedule a consultation.

This non-interactive blog does not allow for discourse about the 

cases, as non-commercial commentary often would by allowing 

readers to post comments. See, e.g., Law.com Legal Blog Watch, 

 4 See Joan M. Reitz, Online Dictionary for Library and 

Information Science, http://www.abcclio.com/ODLIS/odlis_F.aspx?#frame (last visited February 25, 

2013) (defining frame as "[a] separately scrollable area in the 

window of a computer application or in a Web page that has been 

divided into more than one scrollable area").
13

http://legalblogwatch.typepad.com/; Above the Law, 

http://abovethelaw.com/. See also June Lester & Wallace C. 

Koehler, Jr., Fundamentals of Information Studies 102 (2d ed. 

2007) (observing that “[i]n contrast to the interaction possible 

in some other forms of web-published information, blog readers

are most frequently permitted to leave comments and create 

threads of discussion”). Instead, in furtherance of his 

commercial pursuit, Hunter invites the reader to “contact us” 

the same way one seeking legal representation would contact the 

firm through the website.

Thus, the inclusion of five generalized, legal posts and 

three discussions about cases that he did not handle on his noninteractive blog, no more transform Hunter’s otherwise selfpromotional blog posts into political speech, “than opening 

sales presentations with a prayer or a Pledge of Allegiance 

would convert them into religious or political speech.” Fox, 

492 U.S. at 474-75. Indeed, unlike situations and topics where 

the subject matter is inherently, inextricably intertwined, 

Hunter chose to comingle sporadic political statements within 

his self-promoting blog posts in an attempt to camouflage the 

true commercial nature of his blog. “Advertisers should not be 

permitted to immunize false or misleading product information 

from government regulation simply by including references to 

public issues.” Bolger, 463 U.S. at 68. When considered as a 
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whole, the economically motivated blog overtly proposes a 

commercial transaction that is an advertisement of a specific 

product. 

Having determined that Hunter’s blog posts discussing his 

cases are commercial speech,

we must determine whether the expression is 

protected by the First Amendment. For commercial 

speech to come within that provision, it at least 

must concern lawful activity and not be 

misleading. Next, we ask whether the asserted 

governmental interest is substantial. If both 

inquiries yield positive answers, we must 

determine whether the regulation directly 

advances the governmental interest asserted, and 

whether it is not more extensive than is 

necessary to serve that interest. 

Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 

U.S. 557, 566 (1980); Adams Outdoor Advertising v. City of 

Newport News, 236 Va. 370, 383, 373 S.E.2d 917, 923 (1988). 

The VSB does not contend, nor does the record indicate, 

that Hunter’s posts do not concern lawful activity; rather, the 

VSB argues that the posts are inherently misleading. While we 

do not hold that the blog posts are inherently misleading, we do 

conclude that they have the potential to be misleading. 

“[B]ecause the public lacks sophistication concerning legal 

services, misstatements that might be overlooked or deemed 

unimportant in other advertising may be found quite 

inappropriate in legal advertising.” Bates, 433 U.S. at 383. 

Of the thirty posts that were on his blog at the time of the VSB 
15

hearing, twenty-two posts named himself as counsel and discussed 

cases that he handled. With one exception, in all of these 

posts, he described the successful results that he obtained for 

his clients.5 While the States may place an absolute prohibition 

on inherently misleading advertising, “the States may not place 

an absolute prohibition on certain types of potentially 

misleading information, . . . if the information also may be 

presented in a way that is not deceptive.” In re R.M.J., 455 

U.S. 191, 203 (1982). Here, the VSB’s own remedy of requiring 

Hunter to post disclaimers on his blog posts demonstrates that 

the information could be presented in a way that is not 

misleading or deceptive. 

Thus, we must examine whether the VSB has a substantial 

governmental interest in regulating these blog posts. Central 

Hudson, 447 U.S. at 566. The Supreme Court of the United States 

has recognized that “ ‘[i]f the naiveté of the public will cause 

advertising by attorneys to be misleading, then it is the bar’s 

role to assure that the populace is sufficiently informed as to 

enable it to place advertising in its proper perspective.’ ” 

Peel, 496 U.S. at 110 (quoting Bates, 433 U.S. at 375). Indeed, 

the Supreme Court of the United States expressed concern that 

 5 In the one case that he does not describe favorable 

results he has received, he discusses how he has been retained 

by a family in a wrongful death lawsuit against a police 

department. 
16

the public may lack the sophistication to discern misstatements 

as to the quality of a lawyer’s services. Bates, 433 U.S. at 

383. Therefore, the VSB has a substantial governmental interest 

in protecting the public from an attorney’s self-promoting 

representations that could lead the public to mistakenly believe 

that they are guaranteed to obtain the same positive results if 

they were to hire Hunter.

Because the VSB’s governmental interest is substantial, we 

must now determine “whether the regulation directly advances the 

governmental interest asserted.” Central Hudson, 447 U.S. at 

566. The VSB’s regulations permit blog posts that discuss 

specific or cumulative case results but require a disclaimer to 

explain to the public that no results are guaranteed. Rules 7.1 

and 7.2. This requirement directly advances the VSB’s 

governmental interest.

Finally, we must determine whether the VSB’s regulations 

are no more restrictive than necessary. Central Hudson, 447 

U.S. at 566. The Supreme Court of the United States has 

approved the use of disclaimers or explanations. Zauderer v. 

Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 

U.S. 626, 651 (1985); In re R.M.J., 455 U.S. at 203; Bates, 433 

U.S. at 384. The disclaimers mandated by the VSB 

shall precede the communication of the case 

results. When the communication is in writing, 

the disclaimer shall be in bold type face and 
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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.

Rule 7.2(a)(3). This requirement ensures that the disclaimer is 

noticeable and would be connected to each post so that any 

member of the public who may use the website addresses to 

directly access Hunter’s posts would be in a position to see the 

disclaimer. Therefore, we hold that the disclaimers required by 

the VSB are “not more extensive than is necessary to serve that 

interest.” Central Hudson, 447 U.S. at 566. 

Hunter’s blog posts discuss lawful activity and are not 

inherently misleading, but the VSB has asserted a substantial 

governmental interest to protect the public from potentially 

misleading lawyer advertising. See Central Hudson, 447 U.S. at 

566. These regulations directly advance this interest and are 

not more restrictive than necessary, unlike outright bans on 

advertising. Id. We thus conclude that the VSB’s Rules 7.1 and 

7.2 do not violate the First Amendment. As applied to Hunter’s 

blog posts, they are constitutional and the panel did not err.

B. Whether the circuit court erred in holding that

the VSB’s application of Rule 1.6 to Hunter’s blog

violated his First Amendment rights.

Rule 1.6(a) states, that with limited exceptions, 

[a] lawyer shall not reveal information protected 

by the attorney-client privilege under applicable 
18

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 . . . .

The VSB argues that the circuit court erred in holding that its 

interpretation of Rule 1.6 violates the First Amendment and that 

Hunter violated that rule by disclosing potentially embarrassing 

information about his clients on his blog “in order to advance 

his personal economic interests.” VSB argues that lawyers, as 

officers of the Court, are prohibited from engaging in speech 

that might otherwise be constitutionally protected. Thus, the 

VSB’s interpretation of Rule 1.6 involves two types of 

information: 1) that which is protected by the attorney-client 

privilege, and 2) that which is public information but is 

embarrassing or likely to be detrimental to the client. Hunter 

is charged with disseminating the later type of information. In 

response to these allegations, Hunter argues that the VSB’s 

interpretation of Rule 1.6 is unconstitutional because the 

matters discussed in his blogs had previously been revealed in 

public judicial proceedings and, therefore, as concluded 

matters, were protected by the First Amendment. Thus, we are 

called upon to answer whether the state may prohibit an attorney 

from discussing information about a client or former client that 
19

is not protected by attorney-client privilege without express 

consent from that client. We agree with Hunter that it may not.

The cases cited by VSB in support of its position differ 

from this case in a substantial way; the cases relied upon by 

VSB involve pending proceedings. It is settled that attorney 

speech about public information from cases is protected by the 

First Amendment, but it may be regulated if it poses a 

substantial likelihood of materially prejudicing a pending case. 

Gentile v. State Bar of Nevada, 501 U.S. 1030, 1076 (1991).

“[A] presumption of openness inheres in the very nature of 

a criminal trial under our system of justice.” Richmond 

Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980). 

Moreover, 

[a] trial is a public event. What transpires in 

the court room is public property. If a 

transcript of the court proceedings had been 

published, we suppose none would claim that the 

judge could punish the publisher for contempt. 

And we can see no difference though the conduct 

of the attorneys, of the jury or even of the 

judge himself, may have reflected on the court. 

Those who see and hear what transpired can report 

it with impunity. There is no special perquisite 

of the judiciary which enables it, as 

distinguished from other institutions of 

democratic government, to suppress, edit, or 

censor events which transpire in proceedings 

before it.

Craig v. Harney, 331 U.S. 367, 374 (1947). All of Hunter’s blog 

posts involved cases that had been concluded. Moreover, the VSB 

concedes that all of the information that was contained within 
20

Hunter’s blog was public information and would have been 

protected speech had the news media or others disseminated it. 

In deciding whether the circuit court erred, we are required to 

make our “own inquiry into the imminence and magnitude of the 

danger said to flow from the particular utterance and then to 

balance the character of the evil, as well as its likelihood, 

against the need for free and unfettered expression.” Landmark 

Communications, Inc. v. Virginia, 435 U.S. 829, 843 (1978). “At 

the very least, [the] cases recognize that disciplinary rules 

governing the legal profession cannot punish activity protected 

by the First Amendment, and that First Amendment protection 

survives even when the attorney violates a disciplinary rule he 

swore to obey when admitted to the practice of law.” Gentile, 

501 U.S. at 1054. The VSB’s interpretation of Rule 1.6 fails 

these standards even when we

balance “whether the ‘practice in question 

[furthers] an important or substantial 

governmental interest unrelated to the 

suppression of expression' and whether 'the 

limitation of First Amendment freedoms is no 

greater than is necessary or essential to the 

protection of the particular governmental 

interest involved,’ ”

Id. (quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32 

(1984)). State action that punishes the publication of truthful 

information can rarely survive constitutional scrutiny. Smith 

v. Daily Mail Pub. Co., 443 U.S. 97, 102 (1979).
21

The VSB argues that it can prohibit an attorney from repeating 

truthful information made in a public judicial proceeding even 

though others can disseminate this information because an 

attorney repeating it could inhibit clients from freely 

communicating with their attorneys or because it would undermine 

public confidence in the legal profession. Such concerns, 

however, are unsupported by the evidence. To the extent that 

the information is aired in a public forum, privacy 

considerations must yield to First Amendment protections. In 

that respect, a lawyer is no more prohibited than any other 

citizen from reporting what transpired in the courtroom. Thus, 

the circuit court did not err in concluding that the VSB’s 

interpretation of Rule 1.6 violated the First Amendment.

C. Whether the circuit court erred in requiring Hunter 

to post a disclaimer on his website that does not comply 

with the requirements of Rule 7.2(3) and therefore does 

not eliminate the misleading nature of his blog posts.

The VSB argues that the single disclaimer that the circuit 

court ordered Hunter to post on his blog was insufficient to 

comport with Rule 7.2(a)(3) because it did not eliminate the 

misleading nature of the posts. 

As we have already concluded, Hunter's blogs are commercial 

speech and, thus, constitute lawyer advertising. When 

advertising cumulative or specific case results, Rule 7.2 

requires that a disclaimer 
22

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.

Rule 7.2(a)(3).

Here, the VSB required Hunter to post a disclaimer that 

complies with Rule 7.2(a)(3) on all case-related posts. This 

means that Hunter’s disclaimers “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.” Rule 7.2(a)(3). The circuit court, 

however, imposed the following disclaimer to be posted once: 

“Case results depend upon a variety of factors unique to each 

case. Case results do not guarantee or predict a similar result 

in any future case.”

While the substantive meaning of the imposed disclaimer may 

conform to the requirements stated in Rule 7.2(a)(3)(i) through 

(iii), it nevertheless is less than what the rule requires. In 

contrast to the committee’s determination, there is no provision 

in the circuit court’s order requiring that the disclaimer be 

formatted and presented in the manner required by Rule 

7.2(a)(3), and the text of the disclaimer prescribed by the 
23

circuit court is not itself formatted and presented in that 

manner. Even so, Hunter does not argue that the disclaimer 

required by the circuit court is an appropriate, less 

restrictive means of regulating his speech and, therefore, we 

decline to so hold. Based on the arguments presented to it, the 

circuit court erred by imposing a disclaimer that conflicted 

with the rule. See, e.g., Rosillo v. Winters, 235 Va. 268, 272, 

367 S.E.2d 717, 719 (1988) (concluding that a circuit court 

abuses its discretion by “enter[ing an] order . . . dispens[ing] 

with the requirements of [a] Rule”); Zaug v. Virginia State Bar, 

285 Va. ___, ___, ___ S.E.2d ___, ___ (2013) (this day decided) 

(“The Virginia Rules of Professional Conduct are Rules of this 

Court.”).

III. CONCLUSION

For the foregoing reasons, we hold that Hunter’s blog posts 

are potentially misleading commercial speech that the VSB may 

regulate. We further hold that circuit court did not err in 

determining that the VSB’s interpretation of Rule 1.6 violated 

the First Amendment. Finally, we hold that because the circuit 

court erred in imposing one disclaimer did not fully comply with 

Rule 7.2(a)(3), we reverse and remand for imposition of 

disclaimers that fully comply with that Rule.

Affirmed in part,

reversed in part,

and remanded.
24

JUSTICE LEMONS, with whom JUSTICE McCLANAHAN joins, dissenting 

in part.

I agree with the majority's resolution of the Rule 1.6 

issue. However, I dissent from the majority's determination 

that Hunter is guilty of violating Rules 7.1(a)(4) and 7.2(a)(3) 

and that Hunter must post a disclaimer that complies with Rule 

7.2(a)(3).

Rule 7.1 governs communications concerning a lawyer's 

services. Rule 7.1(a)(4) states:

(a) A lawyer shall not, on behalf of the lawyer 

or any other lawyer affiliated with the lawyer or 

the firm, use or participate in the use of any 

form of public communication if such 

communication contains a false, fraudulent, 

misleading, or deceptive statement or claim. For 

example, a communication violates this Rule if 

it:

. . . .

(4) is likely to create an unjustified 

expectation about results the lawyer can achieve, 

or states or implies that the lawyer can achieve 

results by means that violate the Rules of 

Professional Conduct or other law.

Rule 7.2 is only applicable to advertisements. Rule 

7.2(a)(3) states:

(a) Subject to the requirements of Rules 7.1 and 

7.3, a lawyer may advertise services through 

written, recorded, or electronic communications, 

including public media. In the determination of 

whether an advertisement violates this Rule, the 

advertisement shall be considered in its 
25

entirety, including any qualifying statements or 

disclaimers contained therein. Notwithstanding 

the requirements of Rule 7.1, an advertisement 

violates this Rule if it:

. . . .

(3) 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.

Hunter's blog contains articles about legal and policy 

issues in the news, as well as detailed descriptions of criminal 

trials, the majority of which are cases where Hunter was the 

defense attorney. The articles also contain Hunter's commentary 

and critique of the criminal justice system. He uses the case 

descriptions to illustrate his views.

The First Amendment

I believe that the articles on Hunter's blog are political 

speech that is protected by the First Amendment. The Bar 

concedes that if Hunter's blog is political speech, the First 
26

Amendment protects him and the Bar cannot force Hunter to post 

an advertising disclaimer on his blog.

Speech concerning the criminal justice system has always 

been viewed as political speech. "[I]t would be difficult to 

single out any aspect of government of higher concern and 

importance to the people than the manner in which criminal 

trials are conducted." Richmond Newspapers, Inc. v. Virginia, 

448 U.S. 555, 575 (1980). As political speech, Hunter uses his 

blog to give detailed descriptions of how criminal trials in 

Virginia are conducted. He notes how the acquittal of some of 

his clients has exposed flaws in the criminal justice system.

The majority asserts that because Hunter only discusses his 

victories, his blog is commercial. The majority does not give 

sufficient credit to the fact that Hunter uses the outcome of 

his cases to illustrate his views of the system. Hunter 

testified that one of the reasons he maintained the blog was to 

combat "the public perception that is clearly on the side that 

people are guilty until they're proven innocent." For example, 

when discussing one of the cases where his client was found not 

guilty, he concludes the post by explaining that this case is an 

"example of how innocent people are often accused of committing 

some of the most serious crimes. That is why it is important 

not to judge the guilt of an individual until all the evidence 

has been presented both for and against him."
27

The majority compares Hunter's detailed discussion of 

criminal trials and how these outcomes illustrate the need to 

hold government to its burden of proof, with "opening [a] sales 

presentation[] with a prayer or a Pledge of Allegiance." The 

majority proposes that his blog is not transformed into 

political speech simply because he included eight posts about 

legal issues and cases he was not involved in. However, the 

twenty-two posts discussing criminal trials in Virginia are 

political speech in their own right, and are not dependent upon 

the content of the other eight posts.

The majority also focuses on the location of Hunter's blog, 

and asserts that because the blog is accessed through the law 

firm's website and is not interactive, that demonstrates the 

blog is commercial in nature. While going through the law 

firm's website is one way to access the blog, it is also 

possible to go directly to the blog without navigating through 

the firm's website. Further, the fact that the blog is not 

interactive in no way commercializes the speech.

Many businesses have websites. It is not uncommon for 

websites to include links to related news articles or 

editorials. Merely because an article may be accessed through a 

commercial portal does not change the content of the article. 

It is the content of speech and the motivation of the speaker 
28

that determines the level of protection to which speech is 

entitled.

Hunter conceded that one of the purposes of the blog was 

marketing. Although the United States Supreme Court has never 

clearly decided whether political speech is transformed into 

commercial speech because one of the multiple motivations of the 

speaker is marketing and self-promotion, its jurisprudence leads 

to the conclusion that Hunter's speech is not commercial.

The traditional test for determining whether speech is 

commercial is if the speech "[does] no more than propose a 

commercial transaction." Pittsburgh Press Co. v. Pittsburgh 

Commission on Human Relations, 413 U.S. 376, 385 (1973)(emphasis 

added); Virginia Bd. of Pharmacy v. Virginia Citizens Consumer 

Council, Inc., 425 U.S. 748, 762 (1976); Board of Trustees of 

the State Univ. of N.Y. v. Fox, 492 U.S. 469, 473-74 (1989). 

Hunter's articles clearly do more than propose a commercial 

transaction. They contain detailed discussions of criminal 

trials in this Commonwealth, and Hunter's commentary and 

critique of the criminal justice system.

The United States Supreme Court has held that commercial 

speech is "expression related solely to the economic interests 

of the speaker and its audience." Central Hudson Gas & Elec. 

Corp. v. Public Service Comm'n. of N.Y., 447 U.S. 557, 561 

(1980) (emphasis added). Marketing is not Hunter's sole 
29

motivation for maintaining this blog. As discussed above, one 

of Hunter's motivations in maintaining the blog is to 

disseminate information about "the criminal justice system, the 

criminal trials and the manner in which the government 

prosecutes its citizens."

Even if marketing was Hunter's sole motivation, economic 

motivation cannot be the basis for determining whether otherwise 

political speech is protected. The United States Supreme Court 

recognized in Pittsburgh Press Co. that merely having some 

economic motivation does not create a basis for regulation. "If 

a newspaper's profit motive were determinative, all aspects of 

its operations – from the selection of news stories to the 

choice of editorial position – would be subject to regulation if 

it could be established that they were conducted with a view 

toward increased sales. Such a basis for regulation clearly 

would be incompatible with the First Amendment." 413 U.S. at 

385.

The mere existence of some commercial motivation does not 

change otherwise political speech into commercial speech. 

"[S]peech does not lose its First Amendment protection because 

money is spent to project it, as in a paid advertisement of one 

form or another." Virginia Pharmacy, 425 U.S. at 761. In 

discussing the economic motivations at issue in Sorrell v. IMS 

Health, Inc., 564 U.S. __, 131 S.Ct. 2653 (2011), the United 
30

States Supreme Court recognized that "[w]hile the burdened 

speech results from an economic motive, so too does a great deal 

of vital expression." Id. at 2665.

Even if there is some commercial content to Hunter's 

speech, any commercial content is intertwined with political 

speech. When commercial and political elements are intertwined 

in speech, the heightened scrutiny test must apply to all of the 

speech. 

It is not clear that a professional’s speech is 

necessarily commercial whenever it relates to that 

person’s financial motivation for speaking. But even 

assuming, without deciding, that such speech in the 

abstract is indeed merely “commercial,” we do not 

believe that the speech retains its commercial 

character when it is inextricably intertwined with 

otherwise fully protected speech. Our lodestars in 

deciding what level of scrutiny to apply to a 

compelled statement must be the nature of the speech 

taken as a whole and the effect of the compelled 

statement thereon.

Riley v. National Federation of the Blind of N.C., Inc., 487 

U.S. 781, 795-96 (1988) (internal citation omitted).

In this case, the policies the Bar advances have no 

persuasive force when applied to Hunter's blog. The purposes of 

Rules 7.1 and 7.2 are to protect the public from misleading 

communications and advertisements concerning a lawyer's 

services. Hunter's articles contain detailed descriptions of 

the trials, along with his commentary on the criminal justice 

system. The Bar produced no evidence that anyone has found 
31

Hunter's articles to be misleading. There appears to be little 

benefit, if any, to the public by requiring Hunter to post a 

disclaimer that concedes his articles are advertisements. 

Hunter disagrees that his articles are advertisements, and 

claims they are political speech. He objects to cheapening his 

political speech by denominating it as advertisement material.

Accordingly, I would hold that Hunter's speech is 

political, is entitled to the heightened scrutiny test, and that 

he cannot be forced to include the advertising disclaimer under 

Rule 7.2 that the Bar seeks to force upon his writings.