October 26, 2018 Top Story

ABA Says Social Media May Waive Confidentiality

Former clients may have “generally known” information used against them

Benjamin E. Long

Although lawyers have a duty of confidentiality with respect to former clients, under ABA Model Rule of Professional Conduct 1.9(c)(1), a lawyer may use “generally known” information to a former client’s disadvantage without the former client’s informed consent. In Formal Opinion 479, the ABA Standing Committee on Ethics and Professional Responsibility sought a workable definition to the term “generally known.”

Based on the ABA committee’s conclusion, the community will “generally know” the client information when the public in a certain geographic area widely recognizes the information. The relevant community may also include the former client’s trade or profession. The committee acknowledged that information made widely available through the Internet or social media could qualify as meeting the “generally known” exception.

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