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Fidelity Diluted: Client Confidentiality Gives Way to the First Amendment & Social Media in Virginia State Bar, ex rel. Third District Committee v. Horace Frazier Hunter

Submitted by Jan Jacobowitz on Mon, 07-21-2014
jacobowitz, Jan L.
Jesson, Kelly Rains
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Campbell Law Review
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United States
Fidelity and confidentiality are hallmarks of the attorney-client relationship. However, as social media use permeates the legal profession, new challenges have arisen to the traditional interpretation of client confidentiality. The Virginia Supreme Court’s recent holding, which concludes that to deny attorney Horace Hunter the ability to blog about his clients’ cases without client consent, after the case concludes and based upon what is found in the public record, is to deny Hunter his First Amendment right of free speech has spurned controversy. The Hunter opinion arguably undermines the long standing legal ethics rule of confidentiality and strikes at the heart of the attorney-client relationship as it has been defined and has evolved since the late nineteenth century. Ultimately, the central issue for the legal profession is whether an attorney’s relationship with a client and the simultaneous duty of confidentiality owed to the client survives the completion of the case notwithstanding what may appear in a public record and regardless of First Amendment considerations. The underlying components that define the attorney-client relationship and the history, evolution, and moral underpinnings of the ethical rule of client confidentiality suggest that the Virginia Supreme Court has diluted client confidentiality in a manner that warrants both further exploration and extreme concern for the fundamental attorney-client relationship.
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