So, on days like today, it is very difficult to have a forum (even one as small as this one) and not talk about truly important problems plaguing society, but no one comes here for my thoughts on those things so I’ll refrain.
Staying in my lane, here is another example of a problem lawyers are still having trouble grasping. The exceptions to client confidentiality under RPC 1.6 (which can also be looked to as a way of justifying disclosure of information about representation of a former client under RPC 1.9) are not likely to give you permission to debate a dissatisfied client publicly, online. This latest example of the problems arising for a lawyer who does so comes via the fine folks at the Legal Profession Blog who first wrote about it yesterday.
A D.C. lawyer has been informally admonished for trying to refute allegations published on the web by a former client. The former client was complaining about overbilling, and the lawyer’s allegedly negligent/improper handling of a mediation for her. Even though the DC Office of Disciplinary Counsel ultimately cleared the lawyer of the alleged violations as to fees and actual handling of the matter, the informal admonishment was in order because of what the lawyer disclosed online in responding to the former client’s complaints.
As the informal admonishment letter to the lawyer explains:
We do find, however, that in including detailed information about your client and the client’s case in your responses to her website postings, you violated your obligations under Rule 1.6 to protect her confidences and secrets — obligations that continued after your attorney-client relationship ended. See Rule 1.6(g). The information that you included in your responses to the client’s posts included information about the client and the client’s case that were protected under Rule 1.6. Although you did not refer to the client by name, you included the name of the client’s employer, the dates on which certain events occurred, and other detailed information that could lead back to your former client. You did not have the client’s consent to publish or disclose this information. Nor did your disclosures fall within any of the exceptions to Rule 1.6, including the exception under 1.6(e)(3) that permits a lawyer to use or reveal client confidences or secrets “to the extent reasonably necessary to establish a defense to a criminal charge, disciplinary charge, or civil claim, formally instituted against the lawyer . . .” (emphasis supplied).
Now, D.C.’s version of the Rule 1.6 “self-defense” exception makes the inability to do what this lawyer did more clear cut than in many other jurisdictions. (It also didn’t help this lawyer’s cause, as the letter goes on to explain, that during the disciplinary investigation process, he went back to the online site to post information claiming he’d been exonerated — conduct the letter indicates was a violation of Rule 8.4(c) and that violation is wrapped into the admonishment as well.) But even in jurisdictions that do not have the “formally instituted” language of D.C., lawyers face an uphill climb trying to respond to online complaints of former clients as I’ve mentioned before a time or two.
It is also worth remembering that, in most jurisdictions, unlike the “confidences and secrets” language still used in D.C., RPC 1.6 extends to any information regarding the representation of a client. Remembering that, and the fact that a paragraph of the Comment to the rule most places alerts lawyers that the prohibition on revealing information “also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person.”
Although the Legal Profession Blog has a bad link, you can get the full letter to the D.C. lawyer here. And, candidly, I’m a bit astonished by that. Here, in Tennessee, this kind of informal discipline is private. Not so in D.C. Learn something new every day.
(Updated – it was brought to my attention that I also had provided a bad link to the letter. I’ve corrected the link. Apologies.)