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Yep, the confidentiality rule means what it says

Yep, the confidentiality rule means what it says

Every so often, a court decision or ethics opinion comes along and I think, “Yes, we absolutely needed that.” The American Bar Association issued such an ethics opinion this week.

ABA Op. 480 doesn’t break new ground but instead drives home the point that – even in this age of social media and socially acceptable oversharing – ABA Model Rule 1.6 means exactly what it says.

Here’s the conclusion from Op. 480:

Lawyers who blog or engage in other public commentary may not reveal information relating to a representation that is protected by Rule 1.6(a), including information contained in a public record, unless disclosure is authorized under the Model Rules.

Arizona’s Ethical Rule (ER) 1.6 is, with a few exceptions, the same as Model Rule 1.6.

Just in case you wonder if you read that conclusion properly, here it is again, with my emphasis:

Lawyers who blog or engage in other public commentary may not reveal information relating to a representation that is protected by Rule 1.6(a), including information contained in a public record, unless disclosure is authorized under the Model Rules.

The opinion defines “public commentary” as including:

  • comments made in “online publications such as blogs, listserves, online articles, website postings, and brief online statements or microblogs (such as Twitter®),
  • discussion in “education programs and discuss[ing] legal topics in articles and chapters in traditional print media such as magazines, treatises, law firm white papers, and law reviews,” and
  • “public remarks in online informational videos such as webinars and podcasts."

In other words, pretty much what lawyers might say in any organized forum outside of legal documents, the courtroom, and client-related conferences.

The ABA opinion emphasizes two salient points that those of us who are ER 1.6 zealots have lectured about for years:

  • Even if the information is in the public record, a lawyer may disclose it only if the client gives informed consent, and
  • Even if the information is generally known, a lawyer may disclose only if the client gives informed consent, because MR 1.6 (and thus ER 1.6) does not contain an exception for information that is generally known.

I’ve talked and written about this before. (Some might say ad nauseum.) Lawyers can’t disclose “information relating to the representation of the client” unless the client gives informed consent, the disclosure furthers the representation, or some specific exception applies. That’s all information, not just attorney-client-privileged information; not just information your client tells you to keep secret. It even includes information publicly available, like what you and opposing counsel have put in filed pleadings. [ER 1.6, comment 3: “applies … to all information relating to the representation, whatever its source.”]

Some lawyers may try to justify public commentary as furthering the representation. Unless it’s an exceptional circumstance, blogging, for example, typically wouldn’t be furthering your client’s representation. It might further your marketing efforts, but rarely your client’s interests.

The opinion even reminds us that lawyers who use hypotheticals “when offering public commentary” should construct those hypotheticals so that there is no “reasonable likelihood that a third party may ascertain the identity or situation of the client from the facts set forth in the hypothetical.” That's already in the comment to the rule but well worth remembering.

In a footnote, the opinion discusses a 2013 Virginia lawyer-discipline opinion – well publicized in legal circles – that held a lawyer's right to free speech permitted him to blog about his client's public proceedings that had concluded. The opinion says that case is “limited to its facts” and noted that Virginia's Rule 1.6 differs from the Model Rule 1.6.

End result: unless the client has given informed consent or the disclosure is impliedly or explicitly authorized, don’t include client information in public commentary. Don't blog about it or use it as a case study and make sure any hypos are not simply thinly veiled descriptions of client matters.

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