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May 13, 2024 Top Legal News of the Week

ABA issues guidance on lawyers’ use of listservs

Lawyer listservs are powerful tools that help attorneys and other professionals keep up with changes in the law. But they pose some potential for violating confidentiality model rules.

The Standing Committee on Ethics and Professional Responsibility's Formal Opinion 511 includes guidance on when lawyers can seek advice on a listserv.

The Standing Committee on Ethics and Professional Responsibility's Formal Opinion 511 includes guidance on when lawyers can seek advice on a listserv.

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On May 8, the American Bar Association Standing Committee on Ethics and Professional Responsibility released a formal opinion that provides guidance for when a lawyer can seek advice on a listserv. It finds that model rules in most cases forbid posting questions or comments related to representation of a client, even in hypothetical or abstract form.

Formal Opinion 511 cites Rule 1.6, which deals with confidentiality and the possibility of unethical behavior under ABA Model Rules of Professional Conduct. The formal opinion finds possible ethical problems “if there is a reasonable likelihood that the lawyer’s questions or comments (on a listserv) will disclose information relating to the representation that would allow a reader then or later to infer the identity of the lawyer’s client or the situation involved.”

“A lawyer may, however, participate in listserv discussions such as those related to legal news, recent decisions or changes in the law, without a client’s informed consent if the lawyer’s contributions will not disclose, or be reasonably likely to lead to the disclosure of, information relating to a client representation,” it adds.

The opinion on listserv posts draws from several prior ABA formal opinions dating back to 1998, as well as recent bar opinions in Oregon and Maryland. Those state opinions spotlight the value of listservs to lawyers to test their understanding of legal principles and to clarify the best way to proceed in unique situations.

But the ABA opinion emphasizes “the more unusual the situation … the greater the risk that the client can be identified, and therefore the greater the care that must be taken to avoid inadvertently disclosing client information protected by Rule 1.6.” It also says participation in most lawyer listserv discussion groups is “significantly different from seeking out an individual lawyer or personally selected group of lawyers practicing in other firms for a consultation about a matter.”

The standing committee periodically issues ethics opinions to guide lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior.

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