United States: ABA Clarifies Lawyers' Confidentiality Obligations Regarding Online Public Commentary

Trisha M. Rich is a litigation attorney in Holland & Knight's Chicago office

Allison Martin Rhodes is a partner in Holland & Knight's Portland office

HIGHLIGHTS:

  • The American Bar Association (ABA), on March 6, 2018, issued Formal Opinion 480, which specifically examines confidentiality obligations for lawyer blogging and other public commentary.
  • Notably, the opinion recites the ABA's view that the information remains confidential even when otherwise publicly available and suggests broad circumstances where the mere identity of the client is confidential.

Most lawyers generally understand the broad outlines of their duty of confidentiality. Despite that, lawyers often run afoul of this rule. In an attempt to clarify these obligations, the American Bar Association (ABA), on March 6, 2018, issued Formal Opinion 480, which specifically examines confidentiality obligations for lawyer blogging and other public commentary. The opinion highlights (or perhaps resolves) a few common points of disagreement. Notably, the opinion recites the ABA's view that the information remains confidential even when otherwise publicly available and suggests broad circumstances where the mere identity of the client is confidential. Neither of these positions are without controversy under the law of a specific state.

Perhaps the most important of the professional duties that lawyers have to their clients is the duty of confidentiality, which appears in ABA Model Rule of Professional Responsibility 1.6. All jurisdictions have a version of Rule 1.6, which provides that a lawyer "shall not reveal information relating to the representation of a client." Information that relates to the representation of a client is much broader than the information that fits into the evidentiary protection of attorney-client privilege. Indeed, the obligation of confidentiality includes all information communicated in confidence by the client, along with all information related to the representation, no matter what the source of that information is. Rule 1.6 also provides exceptions to the duty of confidentiality, including where a client provides informed consent or where the disclosure is impliedly authorized in order to carry out the representation. Additional subparts to the rule provide other exceptions, some of which are optional, while others require mandatory disclosures (most famously, lawyers generally have a duty to disclose confidential information where the lawyer reasonably believes it is necessary to prevent reasonably certain death or substantially bodily harm).

The unusual thing about the latest opinion, though, is that it breaks very little new ground. The main point of the opinion is simply to reinforce to lawyers that their obligations of confidentiality always apply, even where a lawyer is communicating electronically. While this is something that lawyers should always remember, we have seen a number of disciplinary cases from around the country where lawyers have gotten into trouble for disclosing too much information online, whether on online review websites, blogs, Facebook posts or other electronic communications.

As the opinion notes, the lawyer violates Rule 1.6(a) "when a lawyer participates in public commentary that includes client information, if the lawyer has not secured the client's informed consent or the disclosure is not otherwise impliedly authorized to carry out the representation."

Additional Considerations

Perhaps the most interesting takeaway from this opinion is that this marks the second recent opinion where the ABA took pains to point out that Rule 1.6 provides no exception for information that is "generally known" or "contained in a public record." See American Bar Association Formal Opinion 479 (Dec. 15, 2017). This point is critically important, because there is a significant misunderstanding among lawyers that they are free to discuss material that would otherwise be confidential if it happens to appear in a publicly filed document. This common perception is wrong in many, if not most, jurisdictions, and as of late, the ABA seems to be going out of its way to stress that point to lawyers. The ABA adopts the majority position that the public filing of a document that contains confidential information, in nearly all cases, will not convert the information contained in that document into "generally known" information, and the normal rules of confidentiality will still apply. Not everyone agrees, including the Supreme Court of Virginia in Hunter v. Virginia State Bar, 285 Va. 485 (2013). For now, however, the ABA's view of publicly available information is the articulated view of most state bar regulators and not a theory that most lawyers should consider tempting in their everyday practice.

One final point to note about the opinion is the ABA's stated view that even the identity of a lawyer's client is protected under the rules of confidentiality, and that a lawyer violates the confidentiality rules when the lawyer describes a client's "hypothetical" situations "if there is a reasonable likelihood that a third party may ascertain the identity or situation of the client from the facts set forth." The "hypothetical" situation is a common tactic that lawyers use; instead of naming a specific client or case, a lawyer will describe a "hypothetical situation." Many lawyers believe that this type of linguistic gymnastics insulates them from liability. In this opinion, the ABA reminds attorneys that even when they don't name clients or specific identifying information, a breach of confidentiality can still occur where there is a reasonable likelihood that a third party could identify the client or legal situation. Again, both of these points are items on which state law can differ, and unless lawyers are sure about the rules of their own jurisdiction(s), fate is best not tempted.1

Conclusion

In short, Formal Opinion 480 reiterates the (hopefully obvious) point that a lawyer's duty of confidentiality applies everywhere, including in online communications. The exceptions to the rule are narrow and in most cases, will require client consent. This is true even with respect to the identification of the client itself, or where confidential information appears in court filings.

Footnotes

1 See Cal. Formal Op. 2011-182 (2011). "In most situations, the identity of a client is not considered confidential and in such circumstances Attorney may disclose the fact of the representation to Prospective Client without Witness Client's consent." Citing to Los Angeles County Bar Association Professional Responsibility and Ethics Committee Op. 456 (1989).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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