October 29, 2019 Practice Points

Confidentiality Obligations for Blogging Lawyers

When composing blogs, always be careful to maintain client confidentiality and to not violate the fundamental duties of the attorney-client relationship.

By Rita M. Aquilio

Many lawyers comment on current legal topics by blogging on their professional websites or through social media channels (e.g., Twitter, Facebook, etc.). Blogs and social media are excellent tools for attorneys, especially for marketing purposes or to share ideas, knowledge, and opinions with colleagues. However, the use of blogs by attorneys comes with certain guidelines, particularly in maintaining client confidentiality.

The ABA, through its Standing Committee on Ethics and Professional Responsibility, previously issued a formal opinion on blogging:

Formal Opinion 480: Confidentiality Obligations for Lawyer Blogging: Lawyers who blog or engage in 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.

The ABA's formal opinion provides the framework for attorneys when blogging. In order to maintain compliance with confidentiality and ethics, an attorney cannot merely read Formal Opinion 480, but must continue to the Model Rules of Professional Conduct. Specifically, a lawyer who seeks to blog on legal topics must turn to Model Rule 1.6.

Model Rule 1.6(a) states: “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).”

It is apparent that the scope of protection afforded under R.1.6 is certainly broad, and attorneys must be mindful of that protection. In fact, Comment (2) to the Model Rule states "[a] fundamental principle in the client-lawyer relationship is that, in the absence of the client's informed consent, the lawyer must not reveal information relating to the representation.”

In fact, the duty of confidentiality does not expire when a matter is concluded. There have been formal ABA opinions citing that the protection of Rule 1.6 “is not forfeited even when the information is available from other sources or publicly filed.” (See, Formal Opinion 04-433, 2004). For instance, an attorney in Illinois whose blog contained entries about conversations with prior clients and identifying references (such as their first names) was held to be in violation of R.1.6 and suspended from practice for 60 days.

Lawyers may not "escape" violating R. 1.6 by referring to hypothetical facts, "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." See, Model Rules of Professional Responsibility R.1.6, Comment 4, 2017. The Formal Ethics Opinion 480 does acknowledge a lawyer's First Amendment rights; however, the main idea of the opinion is that such rights to free speech are narrow.

In sum, it must be stressed when composing blogs that lawyers must always be diligent and cognizant of their duty to maintain client confidentiality before, during, and after representation, in a general manner that does not violate the fundamental duties of the attorney-client relationship.

Rita M. Aquilio practices at Lawrence Law LLC, with offices in Watchung and Red Bank, New Jersey.

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