Ethical Use of Hypotheticals in Case Discussions
ABA Model Rule 1.6 Comment 4 advises that using a hypothetical to “discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved.” In any public-facing discussion, these prohibitions are particularly relevant, because audience members can easily connect the dots from contextual information in hypotheticals to learn who the client is or simply look up the speaker’s cases online to get the same information. This makes it nearly impossible to say that there is “no reasonable likelihood” that client confidential information will be disclosed when lawyers use hypotheticals based on their clients and cases in situations where the lawyer’s identity is known.
ABA Formal Opinion 480 (public comments by lawyers such as blog posts and social media) and ABA Formal Opinion 511R (lawyers discussing cases on lawyer forums such as LISTSERV) take this principle further. Both opinions warn against the use of hypotheticals in any public context without the client’s informed consent when there’s a possibility that third parties could deduce the identity or specific details of a client’s situation.
The combined guidance from these ethics opinions and related rules establish a high bar for confidentiality in public legal commentary and make it clear that clever wordsmithing and linguistic acrobatics alone (i.e., using hypotheticals) will not insulate lawyers from the risk of liability for a breach of the rules regarding confidentiality in these kinds of settings.
Advanced Strategies for Securely Using Hypotheticals with GAI
While any use of a hypothetical to discuss a client or case requires vigilance regarding client confidentiality, GAI may offer a more protective environment for the use of a well-written hypothetical.
In contrast to using hypotheticals in public discussions or commentary, using a hypothetical in a GAI prompt significantly reduces the likelihood of associating a scenario with a specific client due to GAI’s inherent anonymity; there is no identifiable author or audience involved. This allows attorneys to use hypotheticals to effectively analyze complex legal issues while safeguarding client confidentiality and to do so without seeking informed consent from the client. This distinction aligns with ABA guidelines on confidentiality, which emphasize that the risk of disclosure varies depending on the audience and platform used.
Consider the following approaches:
1. Abstract the Core Legal Issue
When crafting hypotheticals, distill the client's situation to its fundamental legal principles, omitting any specifics that could reveal their identity—such as names, dates, financial figures, or unique circumstances. Focus on the legal doctrines or statutory interpretations at play rather than granular details.
Example:
Instead of asking about a “global pharmaceutical company facing allegations of off-label marketing in violation of FDA regulations,” reframe the inquiry to address “a corporation navigating regulatory compliance challenges in the context of strict federal oversight.” This allows you to explore the complexities of regulatory compliance without disclosing identifiable information.
2. Emphasize Legal Theories and Precedents
Center your inquiries on broader legal theories, jurisprudence, or procedural rules. You can gain insights without tying the discussion to specific client facts by focusing on legal frameworks and landmark cases.
Example:
Rather than delving into the specifics of a complex international arbitration your client is involved in, you might ask, “How have recent court decisions impacted the enforcement of arbitral awards under the New York Convention?” This approach examines critical legal interpretations without disclosing client involvement.
3. Frame Questions Around Legal Processes and Strategies
Pose questions that concentrate on legal processes, litigation strategies, or best practices rather than specific factual scenarios. This enables you to gather strategic insights while maintaining confidentiality.
Example:
If advising a client on mitigating risks in cross-border mergers, you could ask, “What are effective due diligence strategies for uncovering potential liabilities in international M&A transactions?” This allows exploration of procedural tactics without referencing the client's situation.
4. Use Analogous Legal Contexts
Construct hypotheticals using different contexts or industries that parallel your client's issues. By transferring the legal problem to a comparable but distinct setting, you can examine relevant principles while further obscuring client details.
Example:
If your client is an energy company facing environmental litigation over alleged contamination, you might frame the hypothetical around a manufacturing company dealing with toxic-tort claims. The legal principles regarding environmental liability and defense strategies remain pertinent, but the context shift protects client confidentiality.
By employing these techniques, you can effectively leverage GAI tools to explore complex legal issues while rigorously safeguarding client confidentiality.
