Blogging Ethics, Redux
In my earlier blog post about blogging, I addressed the first big potential minefield for lawyer-bloggers: whether your blog constitutes advertising. Now let’s move to the even stickier issue: if you blog, take care not to run afoul of ER 1.6.
Your clients are a rich source of blog material, aren’t they? You could write about that complicated child-support petition you filed for your new family law client. You could write about gotten an acquittal for that high-profile business executive against DUI charges. You could post that appellate brief you wrote for your corporate client in which you are challenging a zoning regulation.
But not unless your clients allow you to.
I’ve written about confidentiality obligations here and here, but as a reminder, ER 1.6’s broad obligations apply to any “information relating to the representation of a client." Although ER 1.6 is titled “Confidentiality of Information,” that doesn’t mean the information must be confidential or secret or subject to the attorney-client privilege. Instead, it refers to how the lawyer must treat representation-related information. To that end, it protects "not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source." ER 1.6(a) and ER 1.6, comment 3; see also Ariz. Ethics Op. 00-11 (discussing confidentiality obligation when a subpoena demands documents from a lawyer related to representation of client when the client does not consent to disclosure); ABA Formal Op. 10-457 (on lawyer websites, “[s]pecific information that identifies current or former clients or the scope of their matters also may be disclosed, as long as the clients or former clients give informed consent as required by Rules 1.6 (current clients) and 1.9 (former clients)”).
In general, ER 1.6 allows a lawyer to disclose information relating to the representation only if the client gives informed consent, the disclosure furthers the representation, or the lawyer may or must disclose. ER 1.6(a). Nothing in ER 1.6 allows a lawyer to unilaterally use representation-related information for his or her own purposes, such as blogging.
Lawyers in other jurisdictions have been disciplined for blogging with client information and without client permission. Here’s an extreme example. An Illinois public defender lost her job after she wrote on her personal blog about cases on which she worked. In one instance, the lawyer represented a college student on allegations that he possessed a controlled substance. On her blog, she referred to him only by his ID number and wrote, “This stupid kid is taking the rap for his drug-dealing dirtbag of an older brother because ‘he’s no snitch.’ I managed to talk the prosecutor into treatment and deferred prosecution, since we both know the older brother from prior dealings involving drugs and guns. My client is in college. Just goes to show you that higher education does not imply that you have any sense.” For violating client confidentiality as well as other missteps – for example, in her blog she called one judge “Judge Clueless” and another “a total asshole” -- Illinois suspended her for 60 days. Wisconsin, where she also was admitted, suspended her for 60 days based on the Illinois proceeding.
That lawyer clearly disclosed non-public information. But what if she had blogged only about information disclosed in the courtroom or court file? Probably the same result in most jurisdictions.
I can hear you now:
You mean unless I get my client’s informed consent, I can’t blog about what happened in a courtroom open to the public although anyone else attending that same hearing could? Don’t I have any First Amendment rights?
In Arizona -- Arizona, which spawned lawyers' First Amendment right to advertise in Bates v. State Bar of Arizona, 433 U.S. 350 (1977) -- we have that broad ER 1.6 language prohibiting lawyers from unilaterally disclosing even publicly available representation-related information.
In Virginia, however, a Virginia lawyer made a similar First Amendment argument in Hunter v. Virginia State Bar, 744 S.E.2d 611 (Va. 2013) ... and won.
On his law firm’s website, the lawyer wrote a blog about his concluded cases, using "public information [that] would have been protected speech had the news media or others disseminated it.” 744 S.E.2d at 620.
In a brief, the Virginia State Bar described one of Hunter’s blog posts like this:
In "Henrico Teacher Not Guilty of Assault” [Hunter] identified his client, Kim Taylor, by first initial and last name and published that he was charged with assault for allegedly threatening a fellow teacher. [Hunter's] first paragraph states, ''In a case argued by Horace Hunter of the law firm of Hunter & Lipton, PC, Judge Steverson dismissed the charges against Taylor for lack of evidence." Kim Taylor testified that any information [Hunter] gained regarding Mr. Taylor was learned through the attorney-client relationship, and further that he did not consent to [Hunter's] publication of his information on [Hunter's] website. Mr. Taylor testified that he believed the posting containing his name and indicating that he was involved in an assault was embarrassing and potentially detrimental. [Hunter] conceded that Mr. Taylor's case was not generally known.
[Transcript citations omitted.]
At the time, Virginia’s confidentiality rule prohibited lawyers from disclosing attorney-client privileged information or information “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.” The Virginia State Bar argued this rule prohibited 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." 744 S.E.2d at 620..
The Virginia Supreme Court rejected that argument, saying:
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 court room….
Id. The Virginia Supreme Court upheld a lower court finding that the Virginia State Bar's interpretation of the confidentiality rule violated the First Amendment. (On a separate issue, however, the court upheld a finding that the lawyer's blog posts were potentially misleading commercial speech.)
Arizona's ER 1.6 – applying to “information relating to the representation of a client” -- is even broader than the language the Virginia State Bar attempted unsuccessfully to enforce against Hunter and his blog. Our ER 1.6 uses the same broad language as the American Bar Association's Model Rule 1.6.
Would Hunter v. Virginia State Bar’s First Amendment conclusion fly in Arizona?
As I’ve written about before, the Arizona Supreme Court recently considered proposals that would have narrowed ER 1.6’s definition of what information lawyers need to keep confidential. In 2015, a Supreme Court committee proposed revising ER 1.6(a) to apply, in general, to information either truly confidential or, even if not confidential, of such a kind that disclosure would harm the client’s interests. The court then asked its staff attorneys to draft an alternative that would allow lawyers to disclose information "generally known." The court ultimately rejected both proposals, leaving ER 1.6 very broad. As it stands today, ER 1.6 restricts lawyers from disclosing even information publicly known or publicly available, including information aired in a public courtroom.
Where does this leave a blogging Arizona lawyer? Right where we started. If you blog, be careful about running afoul of ER 1.6.