Last month the ABA Standing Committee on Professional Responsibility released Formal Opinion 480, Confidentiality Obligations for Lawyer Blogging and Other Public Commentary, reminding lawyers that their duties of confidentiality extend to blogging and other online activities.
The opinion cautions lawyers about commenting publicly about cases or information relating to the representation of a client, including the fact of representation, even if some of that information is already publicly available.
The confidentiality rules are covered in Model Rule 1.6 (for current clients) and 1.9 (for former clients). There are exceptions to these rules which would allow a lawyer to publicly comment on the representation of a client, including the “generally known” exception under Rule 1.9.
Many lawyers may have thought that they were free to comment on cases if they were a matter of public record, such as where a decision or verdict could be easily accessed by a jury verdict search or by obtaining the court file. But the opinion reminds lawyers that the confidentiality rule is much broader than attorney-client privilege and that it applies to more than just communication between the lawyer and the client. The confidentiality rules cover all information relating to the representation, regardless of the information’s origin.
Citing ABA Formal Opinion 479, The “Generally Known” Exception to Former-Client Confidentiality, issued in December 2017, Opinion 480 cautions lawyers that even if information can be found in a public record, such as a court decision, it is still subject to the duty of confidentiality.
Opinion 479 clarifies the “generally known” exception to the duty of confidentiality under Rule 1.9, stating that the exception applies to the use, and not the revelation of client information, and then it applies,
...only if the information has become (a) widely recognized by members of the public in the relevant geographic area; or (b) widely recognized in the former client’s industry, profession, or trade.
Information is not “generally known” simply because it has been discussed in open court, or is available in court records, in libraries, or in other public repositories of information.
The New York Bar Association Committee on Professional Ethics issued a similar opinion in June 2017, Opinion 1125 ,(cited in Opinion 479) which states that, “Although information that is generally known in the local community is not protected as confidential information, information is not ‘generally known’ simply because it is in the public domain or available in a public file.”
Another New York opinion cited by ABA 479, Opinion, 991 (2013) notes that, “information is generally known only if it is known to a sizeable percentage of people in ‘the local community or in the trade, field or profession to which the information relates.’”
According to Opinion 479, “Unless information has become widely recognized by the public (for example by having achieved public notoriety), or within the former client’s industry, profession, or trade, the fact that the information may have been discussed in open court, or may be available in court records, in public libraries, or in other public repositories does not, standing alone, mean that the information is generally known for Model Rule 1.9(c)(1) purposes.”
In short, these opinions distinguish between publicly available information and information that would qualify as “generally known.” There must be some showing beyond the fact that the information is a matter of public record to qualify for the exception.
How do these opinions affect lawyer blogs?
Both Rule 1.6 and Rule 1.9 permit the revelation of client information with the consent of the client. (There are other exceptions as well, but they do not apply in the context of blogging and social media). The best way for lawyers to protect themselves and ensure compliance with ethics rules is to obtain written consent from the client before posting or commenting about their matter online (or writing an article in a print publication, discussing the case at a CLE program, etc.).
Lawyers are always free to comment generally on legal issues and could certainly blog about issues they have encountered in various cases. They can also use hypotheticals, point to cases from the news, or comment on reported decisions to illustrate legal concepts.
When using hypotheticals based on their own cases, lawyers should heed the warnings contained in these various ethics opinions and ensure that there is no reasonable likelihood that a third party could ascertain the client’s identity from the way the hypothetical is described.
Finally, even lists of clients contained on a lawyer’s blog or website would be covered by the confidentiality rules, so lawyers whose sites contain these kinds of lists should ensure that they have documentation of the clients’ consent to do so.