June 14, 2018 Top Story

Social Media May Waive Confidentiality Says ABA

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

By Benjamin E. Long

ABA Standing Committee on Ethics and Professional Responsibility (ABA Committee) sought a workable definition to the "generally known" exception to the Model Rules of Professional Conduct 1.9(c)(1).

The opinion sets forth guidelines that many courts will likely adopt in future cases, say ABA Section of Litigation leaders. The opinion concludes that 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 ABA Committee acknowledged that information made widely available through the Internet or social media could qualify as meeting the generally known exception.

Lawyer Owes Duty of Confidentiality to Former Clients with Exceptions

In Formal Opinion 479, the ABA Committee analyzed rule 1.9(c), which "separately regulates the use and disclosure of confidential information." It states a lawyer may not use information relating to representing former clients to their disadvantage without informed consent. One exception includes if the information is "generally known."

The ABA introduced in the 1983 model rules the "generally known" exception regarding attorneys using information against former clients. Neither the model rules nor their official comments explain the exception. Therefore, the ABA Committee recognized the need to analyze this issue. The ABA Committee named several states who adopted the position that mere public availability of information was not enough. For the public to generally know information, it must be more widely known and popular.

ABA Committee Weighs in to Create Workable Standard

The ABA Committee concluded "information is generally known within the 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 clarified that there is a difference 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 also does not necessarily qualify.

Privilege May be Waived by Social Media and Online Postings

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" and waive that privilege.

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 ABA Committee analyzed a different rule relating 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 a variety of ever-increasing 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

It is difficult to ascertain an exact standard from the committee's opinion as it is "very fact sensitive," explains Scott E. Reiser, Roseland, NJ, cochair of the Section of Litigation's Ethics & Professionalism Committee. 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's Trial Evidence Committee. In fact, some jurisdictions already follow a similar standard, he adds. The ABA 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

 

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


Hashtags: #attorneyclient, #confidentiality

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