April 03, 2018 Practice Points

ABA Reminds Lawyers That Confidentiality Obligations Apply to Online Public Commentary

A formal opinion from the ABA serves as a reminder that care must be taken when posting online.

By Amelia Toy Rudolph

On March 6, 2018, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 480, “Confidentiality Obligations for Lawyer Blogging and Other Public Commentary,” reminding lawyers 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.”

Very little new ground appears to have been broken with this opinion, which applies existing model rules and commentary to online publications such as blogs, listservs, online articles, website postings, social media in general, and Twitter. The primary focus of the opinion is to reinforce the confidentiality obligations of Model Rule 1.6: “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).”

The opinion emphasizes that Rule 1.6 applies to all information relating to the representation, whatever its source, including the identity of the client and information already of public record. Labeling the commentary as a “hypothetical” will not immunize the commentary from Rule 1.6 if the “hypothetical” contains enough information to ascertain the client’s identity or situation.

The opinion states, “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).”

Regarding whether these confidentiality obligations infringe upon a lawyer’s First Amendment right of free speech, the opinion notes that “this right is not without bounds” and that “when a lawyer acts in a representative capacity, courts often conclude that the lawyer’s free speech rights are limited.”

Regarding trial publicity and similar public statements regarding a representation, the opinion reinforces the applicability of Model Rule 3.5, which prohibits a lawyer from seeking to influence a judge, juror, prospective juror, or other official by means prohibited by law, to online communications. The opinion further notes Model Rule 3.6, under which any public commentary by a lawyer about an investigation or ongoing litigation of a matter is prohibited “if it has a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter” and does not otherwise fall within a recognized exception.

The footnotes to the opinion identify additional issues of which lawyers should be aware when making online public commentary. For example, the opinion cautions against inadvertently forming attorney-client relationships with readers of their public commentary: “A lawyer commenting publicly about a legal matter standing alone would not create a client-lawyer relationship with readers of the commentary. However, the ability of readers/viewers to make comments or to ask questions suggests that, where practicable, a lawyer include appropriate disclaimers on websites, blogs, and the like, such as ‘reading/viewing this information does not create an attorney-client relationship.’”

The opinion also suggests that lawyer blogging may create a positional conflict, as social-media commentary by a lawyer could risk contradiction with his or her firm’s official position on an issue in a pending case. The opinion, however, does not address positional conflicts.

The bottom line for lawyers communicating online is that the ABA Model Rules apply to online communications as well as to more traditional forms of communication, and that care should be taken to ensure compliance with those rules.

Amelia Toy Rudolph is a partner with Eversheds Sutherland (US) LLP in Atlanta, Georgia.

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