Prominent technology blogger, Robert Ambrogi, has taken to Above the Law to criticize the latest ABA Formal Ethics Opinion. In addition to attempting to savage it over being somehow untimely since lawyers have been blogging for almost 20 years, his primary substantive criticism of the opinion is that it makes no sense for an ethics rule to prohibit a lawyer from speaking or writing (or blogging or Tweeting) publicly about information that is already in the public record.
Ambrogi’s criticism is a bland (and perhaps satisfying at a surface level) kind of thing to say, but it reveals that the author is not someone who has spent a bunch of time working with, or thinking about, the ethics rules.
In the nature and spirit of “open letters to people who are unlikely to read them,” I offer this primer to Mr. Ambrogi on why our profession has crafted an ethics rule that does, in fact, err on the side of prohibiting lawyers from further discussing things even that are public record without our client’s consent or the need to do so to further the representation.
Dear Mr. Ambrogi:
Let’s pretend that I was currently representing a prominent legal technology blogger in a divorce proceeding. This is, admittedly, a hard thing to pretend as I don’t do family law, but we’ll push on nonetheless.
In order to secure the desired divorce for the blogger, and because of the truly toxic nature of the blogger’s relationship with their significant other, I end up having to share a lot of deeply personal, highly intimate, and potentially quite embarrassing information in the complaint for divorce not only about the blogger but about the blogger’s significant other and that person’s various other romantic partners.
Now that happens in a state where it is very difficult to establish the need for court filings to be sealed, thus the complaint for divorce is a public record upon filing. It also occurs in a state where, while it is true that court records are public records, they are not well-organized online and are not all that easy to locate.
Thus, my client knows that what is in the complaint is a matter of public record, but they are certainly hopeful that the information will not be widely disseminated and that these intimate and embarrassing items are only ever learned and read by people directly associated with the court process.
Now, if your approach to the ethics rule on confidentiality were what our profession had adopted, then I’d be free at a cocktail party, or on a blog, or in a Tweet to share the wild information about my client’s personal life because it was a matter of public record, and I could do so simply to entertain those around me.
I would hope at this point we would both agree that would be a bad approach for the ethics rules governing our profession to take.
Thus, to protect against that kind of ability to disclose information, the rules are crafted to start from the premise that lawyers ought not to talk publicly about their client’s matters unless they have the client’s consent or some legitimate reason to do so. (This includes not only further communications impliedly authorized to carry out the representation but situations where it becomes necessary to make disclosures, for example, for the lawyer to defend themselves in other proceedings. If the blogger’s significant other turned around and filed a defamation lawsuit against me over the publication in the complaint about the intimate details of that person’s life, the ethics rules would allow me to disclose information reasonably necessary to defend myself.)
So, as that ends my rant, I will conclude by saying that I still stand by (another writing that you are unlikely to read) my prior take that Formal Opinion 480 is a good one.