Hello everyone and welcome to this Ethics Alert which will discuss ABA Formal Opinion 480, which was released on March 6, 2018 and addresses lawyer ethics and confidentiality obligations when engaging in blogging and other public commentary. The ABA Formal Opinion is here: https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba_formal_opinion_480.authcheckdam.pdf
The opinion initially sets forth the various types of lawyer public communications and commentary, including online publications such as blogs, listserves, online articles, website postings, and brief online statements or microblogs (such as Twitter®) that ‘followers’ (people who subscribe to a writer’s online musings) read. Lawyers continue to present education programs and discuss legal topics in articles and chapters in traditional print media such as magazines, treatises, law firm white papers, and law reviews. They also make public remarks in online informational videos such as webinars and podcasts (collectively ‘public commentary’).”
The opinion provides important information regarding the broad scope of lawyer/client confidentiality under the rule, the limited exceptions to the rule, and whether a lawyer can pose a “hypothetical” to avoid violating the rule. The information is below with relevant portions in bold:
This confidentiality rule “applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.” In other words, the scope of protection afforded by Rule 1.6 is far broader than attorney-client privileged information.
Unless one of the exceptions to Rule 1.6(a) is applicable, a lawyer is prohibited from commenting publicly about any information related to a representation. Even client identity is protected under Model Rule 1.6. Rule 1.6(b) provides other exceptions to Rule 1.6(a). However, because it is highly unlikely that a disclosure exception under Rule 1.6(b) would apply to a lawyer’s public commentary, we assume for this opinion that exceptions arising under Rule 1.6(b) are not applicable.
Significantly, information about a client’s representation contained in a court’s order, for example, although contained in a public document or record, is not exempt from the lawyer’s duty of confidentiality under Model Rule 1.6. The duty of confidentiality extends generally to information related to a representation whatever its source and without regard to the fact that other may be aware of or have access to such knowledge.
A violation of Rule 1.6(a) is not avoided by describing public commentary as “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.
The opinion concludes that “(l)awyers who blog or engage in other public commentary may not reveal information relating to a representation, including information contained in a public record, unless authorized by a provision of the Model Rules.”
Bottom line: This ABA opinion addresses the ethics issues related to lawyer blogs and public commentary and client confidentiality and provides guidance. The opinion is not binding; however, it provides important information and the analysis is applicable in most, if not all jurisdictions, including Florida. Lawyers should consult the rules and ethics opinions of their jurisdiction for further guidance.
Be careful out there.
Disclaimer: this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
29605 U.S. Highway 19 N. Suite 150
Clearwater, Florida 33761
Office (727) 799-1688
Fax (727) 799-1670