This column continues my commitment to connect the theme of this Law Practice issue to developments in legal ethics, law practice and risk management; specifically, how the Internet and digital legal marketing are threatening client confidentiality.
Background. From 2010 to 2012, I served on the Technology Working Group for the ABA Commission on Ethics 20/20 (Ethics 20/20). After several years of work, Ethics 20/20 suggested that advancing technology necessitated only relatively minor, noncontroversial changes in ABA Model Rules of Professional Conduct 7.1 to 7.5, which govern lawyer advertising.
In hindsight, I believe Ethics 20/20 and most regulators failed to appreciate how the Internet and the corresponding emphasis on “content marketing” would fundamentally alter lawyer advertising and create greater pressure on a lawyer’s duty to protect client confidences.
Protection of confidences. ABA Model Rule 1.6(a) states that, unless relatively narrow exceptions apply, a lawyer “shall not reveal information relating to the representation of a client.” This confidentiality is a “fundamental principle in the client-lawyer relationship.”
Ethics 20/20 recognized that Rule 1.6(a) prevented a lawyer from “revealing” client confidences, but it did not expressly require lawyers to protect client confidences from unauthorized or inadvertent disclosure. Since there is a very real risk of disclosure in our digital world, Ethics 20/20 suggested adding a requirement to protect information. This resulted in adoption of Rule 1.6(c), stating: “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”
Risk to information. Certainly Rule 1.6(c) helps, but the constant push for lawyers to post Internet content—blogging, tweeting and the like—substantially increases the risks to client information.
A great illustration of a lawyer generating Internet content to attract clients is Hunter v. Virginia State Bar, No. 121472 (Va. Feb. 28, 2013). In Hunter, a lawyer blogged about criminal cases he handled for clients without the clients’ permission.
A hearing panel found this unethical, but the Virginia Supreme Court reversed, concluding that a lawyer could report on publicly disclosed information at a client’s criminal proceeding without client consent. “To the extent [this] information is aired in a public forum,” the Hunter court explained, “privacy considerations must yield to First Amendment protections.”
Sign of the future? Hunter’s holding may be rejected as unpersuasive by other courts. Yet Hunter serves as a powerful reminder that lawyers and law firms may be inclined to promote their firms by revealing client confidences.
Hunter also may be a marker in our society’s changing relationship with lawyer-client confidentiality. After the Enron fiasco, Model Rules 1.6 and 1.13—but not the corresponding Rules in my home state of Missouri—were modified, allowing lawyers to reveal client confidences to mitigate or prevent harm caused by certain client wrongdoing.
Recent events within and outside the legal profession suggest further changes in our relationship with confidentiality. Some see Edward Snowden’s leaking of details about government surveillance programs as another indication more Americans believe it is okay to disclose information to prevent societal harm. Likewise, more law students in my ethics class seem to support revealing client confidences to free someone wrongfully incarcerated, even if the disclosure may place the lawyer’s own client in jeopardy.
Conclusion. This apparent corrosion of confidentiality may be a natural consequence of the Internet and of our whistle-blower society. Yet perhaps clients will begin to bar lawyers from disclosing confidences for promotional purposes, or lawyers may require clients to authorize these disclosures as part of the terms of engagement.
Whatever the result, it is certain that we will continue to see increased pressure on client-lawyer confidentiality to yield when pressed by other societal concerns.