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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.”

Former Clients and the “Generally Known” Exception
Model Rule 1.9(c)(2) prohibits a lawyer from revealing information about a former client except as the rules permit or require, thus incorporating the protections of Model Rule 1.6.

If the information is public, Model Rule 1.9(c)(1) provides a limited exception to the duty, stating that a lawyer may not “use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known.” The problem is “generally known” is not defined by the Model Rule.

Public Information Is Not Necessarily “Generally Known”
In December 2017, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 479 to provide guidance as to the undefined “generally known” exception to Model Rule 1.9(c)(1). Formal Opinion 479 advises that “generally known” may be met “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.”

The committee acknowledged that deciding when information is not “generally known” has been more easily reached. For example, the committee agreed that “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.” Testimony in open court or at a public hearing is generally considered part of the public record and known to all in attendance (and perhaps some online). For the lawyer whose former client’s information is at issue, the status of being publicly known does not mean the lawyer can use that information.

Likewise, knowing where to look or how to find public information does not convert public information to information that is “generally known.” Sobel v. Sells (In re Gordon Props., LLC), 505 B.R. 703, 707 n.6 (Bankr. E.D. Va. 2013) (“‘Generally known’ does not mean information that someone can find. . . . ‘Generally known’ does not require publication on the front page of a tabloid, but it is more than merely sitting in a file in the courthouse.”); Dougherty v. Pepper Hamilton LLP, 133 A.3d 792, 800 (Pa. Super. Ct. 2016) (finding affidavit inadvertently misfiled in another case on PACER required “special knowledge” to locate); Restatement (Third) of the Law Governing Lawyers § 59 cmt. d (“Information is not generally known when a person interested in knowing the information could obtain it only by means of special knowledge or substantial difficulty or expense.”) Lawyers must be aware that public information, even when known by some, does not mean that it is “generally known.”

Trade Secret Analogy: If a Secret Is on the Internet, Is It Still Secret?
In assessing whether information constitutes a protectable secret in a trade secret case, courts consider whether the information is known to the public or to competitors. In evaluating whether the required secrecy status has been lost with an Internet disclosure, courts have considered the length of time the secret was online, where it was posted, and the location where it was made available. Simply being on the Internet will “not necessarily destroy the secret if the publication is sufficiently obscure or transient or otherwise limited so that it does not become generally known to the relevant people.” DVD Copy Control Ass’n v. Bunner, 116 Cal. App. 4th 241, 251 (2004). A fleeting post of a trade secret in a remote and foreign location may be “sufficiently obscure or transient or otherwise limited” so that it was not made “generally known to the relevant people.” Syncsort Inc. v. Innovative Routines, Int’l, Inc., No. 04-3623, 2011 WL 3651331, at *13 (D.N.J. Aug. 18, 2011).

Likewise, if no one notices the online posting of a trade secret, it may not even be considered public knowledge. BondPro Corp. v. Siemens Power Generation, Inc., 463 F.3d 702, 706 (7th Cir. 2006) (finding that the “mere fact of mention in a public document is not controlling” on the question of whether a secret is now public knowledge because “no one may have noticed the document”).

These trade secret cases protect the holder of the secret and preserve confidentiality even when information is published online and could be of assistance in assessing the “generally known” standard articulated in Formal Opinion 479.

The Committee’s “Workable Definition”
In crafting a “workable definition,” the committee advised that information may become “generally known” as a result of publicity in “traditional media sources” (e.g., newspapers, magazines, radio, or television), “internet web sites,” or “through social media.” Information may become “generally known” within an industry if, for example, it is “announced, discussed, or identified” in “a leading print or online publication or other resource in the particular field.”

Formal Opinion 479 endorsed the idea that events gaining “considerable public notoriety” should be considered as “generally known.” When considering the “generally known” standard, whether under trade secret analysis or ethical rule, many courts reference “widespread publicity” within the community or industry. Social media and digital publications provide unique opportunities to measure dissemination not previously available to print publication.

Social Media’s Use of Data Metrics
Clearly, if information goes “viral”—meaning that most of the world is aware of it—the information would be considered “generally known.” Defining the threshold for the “going viral” standard is complicated. See G.R. Boynton, Going Viral—The Dynamics of Attention, in U. Mass. Amherst ScholarWorks, YouTube and the Election Cycle in the United States, J. of Info. Tech. & Politics Conf. Proceedings at 11 (Apr. 2009). Data analysts rely on factors such as the number of views, shares, links, unique users, and other factors. A prime example is the concept of “liking” or commenting on someone’s post on social media. Social media platforms visibly tally the number of comments or likes received on individual posts. Digital publishers such as the New York Times regularly collect the most popular stories of the day on their trending pages and provide data as to the most popular stories based on views, shares, searches, and tweets.

With this readily available data about online usage, courts and ethics boards could likewise look at how many comments are posted before determining whether information is “generally known” within the community. Data collected as to the usage of social media and web communications may well establish that information is “generally known” under Model Rule 1.9(c)(1).

Traps for the Unwary
Social media and online publishing may thus help lawyers determine whether information relating to the representation of a former client has become “generally known” and falls outside a lawyer’s duty of confidentiality. While social media and the “generally known” exception may provide the basis for using information about former clients, lawyers should consider a few traps for the unwary:

· There is no “generally known” exception for existing clients. Only Model Rule 1.9(c)(2) regarding former clients includes the “generally known” exception.

· There is no exception allowing a lawyer to reveal—as opposed to use—information relating to a representation.

· Lawyers should be wary of circumstances where the duty of confidentiality could be expanded beyond the scope of Model Rule 1.9(c), including, for example, language in lawyer retention agreements, client guidelines, press release limitations, advertising and marketing limitations, nondisclosure agreements, settlement agreements, or cybersecurity agreements. These situations may impose further restrictions on the use of information.

· Formal Opinion 479 does not discuss what constitutes a “disadvantage to the client” under Model Rule 1.9(c)(1). Social media provide a variety of new situations for lawyers to consider; therefore, caution is warranted before any use.

· Lawyers should periodically review the ethics rules and opinions adopted by the specific jurisdiction or jurisdictions in which they are licensed, in which they are admitted pro hac vice, and in which their law firm maintains an office. Confidentiality ethics rules differ from jurisdiction to jurisdiction with some jurisdictions having completely different rules that dramatically alter the extent of the protection. For example, in Massachusetts and New York, Rule of Professional Conduct 1.6(a) defines “confidential information” and, by so doing, has a more narrow prohibition. Mass. Prof’l Conduct R. 1.6 cmt. 3A; N.Y. R. Prof’l Conduct 1.6(a). Yet, there are also subtle differences—the Massachusetts definition includes “information that the lawyer has agreed to keep confidential” and the New York definition includes “information that the client has requested be kept confidential.”

· If you are thinking of sharing a war story or writing a novel, be cautious, even if the information is public and “generally known.” The New York State Bar Association (NYSBA) Committee on Professional Ethics cautioned that stray facts in isolation known by few may be acceptable, but if combined with other identifying information, may permit a reader to ascertain a client’s identity and thus violate the duty of confidentiality. NYSBA Comm. on Prof’l Ethics, Opinion 1026 ¶¶ 14–16 (2014).

· Before you post responses to reviews by unhappy former clients, consider your confidentiality obligations. An advisory opinion of the Pennsylvania Bar Association Legal Ethics and Professional Responsibility Committee (Pa. Ethics Op. 2014-200) provides some prudent advice in this regard: “[T]he lawyer’s responsibilities to keep confidential all information relating to the representation of a client, even an ungrateful client, must constrain the lawyer.”

Maureen C. Pavely is senior counsel at Day Pitney LLP in Parsippany, New Jersey.

Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).