October 26, 2018 Top Story

ABA Says Social Media May Waive Confidentiality

By 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.

Lawyers Owe Duty of Confidentiality to Former Clients, with Exceptions

In contrast to Rules 1.9(a) and (b), which apply to situations in which a lawyer’s knowledge of a former client’s confidential information would create a conflict of interest in a subsequent representation, the ABA committee analyzed rule 1.9(c), which “separately regulates the use and disclosure of confidential information” whether or not there is a subsequent representation. It states that a lawyer may not use information relating to representing former clients to their disadvantage without informed consent but creates an exception if the information is “generally known.”

This exception was first introduced in the 1983 model rules. Neither the model rules nor their official comments explain the exception, however. Therefore, the committee recognized the need to analyze this issue.

The New York State Bar Association’s Committee on Professional Ethics stated its standard for the exception in 2013. They wrote that “information is generally known only if it is known to a sizable percentage of people in the local community or in the trade, field, or profession to which the information relates.” The ABA committee gave this explanation considerable weight in suggesting that the public “generally knows” popularly or widely known information

The committee also looked to several states that have adopted the position that mere public availability of information was not enough. For the public to generally know information, it must be more than merely available.

ABA Committee Weighs in to Create Workable Standard

The ABA committee concluded that “information is generally known within the meaning of Model Rule 1.9(c)(1)” under two circumstances. First, “it is widely recognized by members of the public in the relevant geographic area. Or, second, “it is widely recognized in the former client’s industry, profession, or trade.”

The opinion explained that under the second category lawyers can treat the information as “generally known” if disclosed in a leading print or online publication. Reasonable members of the former client’s industry, profession, or trade must consider the publication “leading.”

The committee noted the difference between using “generally known” information, which a lawyer may, and using confidential client information, which a lawyer may not. The information “must previously have been revealed by some source other that the attorney,” added the ABA committee.

Further, the committee recognized the distinction between publicly known and publicly available. Information discussed in open court or available in a court record is publicly available but not necessarily publicly known. Therefore, this information is not “generally known” under the standard. Similarly, information available in a library or other public forum does not necessarily qualify.

Privilege May Be Waived by Social Media and Online Postings

The committee pointed out that information has traditionally become “generally known” through newspapers, magazines, radio, or television. However, the opinion stated that information may also become “generally known” through websites and social media. Lawyers seeking to use information adverse to a former client may identify any announcement, discussion, post, tweet, or any other information to meet the standard. Thus, a variety of online publications or social media posts or comments may cause previously protected information to become “generally known.”

This is the first of two recent ABA committee formal opinions that acknowledge the internet and social media as being subject to ethical considerations. The committee analyzed lawyer blogging and public commentary as relates to confidential client information in Formal Opinion 480.

Unless an exception exists, the committee concluded that “lawyers who blog or engage in other public commentary may not reveal information relating to a representation that is protected by Rule 1.6(a) ….” The committee recognized that attorneys are engaging in online commentary through an ever-increasing variety of platforms. The opinion specifically cited blogs, listservs, website postings, and “microblogs” like Twitter as possible forums that may have attorney ethical considerations.

Section Leaders Foresee Problems and Expect Better Clarification

In their opinion, the ABA committee more clearly defined the “generally known” exception that had evolved since its inception, says Scott E. Reiser, Roseland, NJ, cochair of the ABA Section of Litigation’s Ethics & Professionalism Committee. It is difficult to ascertain an exact standard from the committee’s opinion as it is “very fact sensitive,” explains Reiser. Because of this uncertainty, litigators must identify potential issues early. Attorneys should consider getting departing clients’ informed consent as significant ambiguity “should weigh in favor of the client,” he warns.

States will likely adopt the opinion widely, predicts Michael R. Lied, Peoria, IL, cochair of the Section of Litigation’s Trial Evidence Committee. In fact, some jurisdictions already follow a similar standard, he adds. The committee acknowledged that social media may play a role in whether information is “generally known,” but did not give more specific guidelines for determination. “My prediction is that we will start getting opinions from courts that will have those specific guidelines,” said Lied. Factors that will matter include “who and how many individuals comprise the audience of the message, in how many places the information appears, and how recent the information is,” he concludes.

 

Benjamin E. Long is a contributing editor for Litigation News.


Hashtags: #LawyerEthics #ProfessionalResponsibility #Confidentiality

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