This was not what I originally planned to write about today, but … here we are all the same.
Today, the ABA Standing Committee on Ethics and Professional Responsibility released a new opinion and, because it relates to social media, it is generating a good deal of discussion online. It is being rolled out and discussed as being of interest to lawyers who blog or tweet or otherwise participate in social media, but it actually is yet another opinion sending a message that all lawyers need to remember. That is because it is another opinion from this body – in a relatively short period of time – emphasizing how broad the scope of client confidentiality is under Model Rule 1.6.
The key piece of the opinion worth knowing (mostly because it applies to lawyer communications in just about any forum or medium of any sort ranging from cocktail parties, to CLEs, to social media) is this:
The salient point is that when a lawyer participates in public commentary that includes client information, if the lawyer has not secured the client’s informed consent or the disclosure is not otherwise impliedly authorized to carry out the representation, then the lawyer violates Rule 1.6(a). Rule 1.6 does not provide an exception for information that is “generally known” or
contained in a “public record.” Accordingly, if a lawyer wants to publicly reveal client information, the lawyer must comply with Rule 1.6(a).
From my experience, this is a point about which lawyers cannot be reminded nearly enough. And, it most certainly is not just a social media issue. Though I have, in the past and far-too-snarkily written about the problem as it crops up on social media.
Interestingly, I spent most of my day today sitting through CLE programming and, perhaps coincidentally, it was the first time in a long time that I actually heard a presenter acknowledge before telling a story about a case that they had actually obtained their client’s permission to talk about the case.
Far too often, I hear lawyer presenters relate information about something they are working on at a CLE by providing so much detail about a situation that it would not take much effort at all to immediately figure out who they are actually talking about. This latest ABA Formal Opinion also offers a helpful refresher on the problem with doing that:
A violation of Rule 1.6(a) is not avoided by describing public commentary as a“hypothetical” if there is a reasonable likelihood that a third party may ascertain the identity or situation of the client from the facts set forth in the hypothetical. Hence, if a lawyer uses a hypothetical when offering public commentary, the hypothetical should be constructed so that there is no such likelihood.