March 14, 2018 Articles

The Lawyer Online: Ethical Challenges and Considerations

By Maureen C. Pavely

An ever-growing percentage of lawyers use social media sites such as LinkedIn, Facebook, or Twitter for networking and marketing. Lawyers post about notable online cases and experiences, sharing “war stories” and even turning their more interesting experiences into highly successful books and movies. But few of those lawyers pause to consider whether they may run afoul of a lawyer’s duty of confidentiality when they discuss publicly available information.

Unlike life in general, where people post anything and everything, lawyers are constrained by their duty of confidentiality. How does this duty affect the sharing of “public information”? If a case or transaction is reported in the news, posted on the Internet, or filed online with the court, can a lawyer who represented the clients involved in the case discuss it publicly?

Surprisingly, the answer is usually no with regard to both current and former clients. The ethical framework is simple, but not necessarily clear, and depends on where you are admitted.

For current clients, the duty of confidentiality under Rule 1.6(a) of the Model Rules of Professional Conduct prohibits lawyers from revealing information relating to the representation of a current client unless the client gives informed consent or disclosure is permitted under Model Rule 1.6(b), for example, to prevent certain death or substantial bodily harm.

The use of the word “information,” rather than “confidence” or “secret,” in the Model Rules illustrates the need for lawyers to be cautious and to properly protect all knowledge acquired from a client. The ethics rules apply without regard to the nature or source of the information or the fact that others share the knowledge. Comment 3 to Model Rule 1.6 states, “The 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.”

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