This spring, the American Bar Association's Standing Committee on Ethics and Professional Responsibility ("ABA") issued two formal opinions addressing attorney's obligations of confidentiality and fidelity. In formal opinion 480, the ABA explained that the Rules of Professional Conduct are not relaxed when attorneys engage with new and more interactive forms of technology. In opinion 481, the ABA opined that attorneys must promptly advise current clients of material errors, but that attorneys have no obligation to advise former clients of errors discovered after the attorney-client relationship has ended.
In formal opinion 480, the ABA considered the growing number of attorneys, who communicate about legal topics through blogs, listserves, podcasts, online articles, and social media. While these forums alter how lawyers communicate and raise practical questions, they do not alter an attorney's obligation of confidentiality under the Rules of Professional Conduct. Attorneys are obligated to keep client confidences unless the client has given informed consent to disclosure, the disclosure is impliedly authorized to carry out the representation, or the disclosure is permitted by Rule of Professional Conduct 1.6 1.
An attorney's duty of confidentiality is broader than the attorney-client privilege. Attorneys must keep confidential information learned during the professional relationship, or that relates to the representation, which the client has requested be kept inviolate, or the disclosure of which might be embarrassing or detrimental to the client 2.
Attorneys cannot sidestep this obligation by describing public commentary as hypothetical if there is a likelihood that the a third party may ascertain the identity of the client from context. "The salient point is that 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, then the lawyer violates Rule 1.6(a)."
In Formal opinion 481, the ABA recognized that "[e]ven the best lawyers may err in the course of clients' representation." A material error occurs when a disinterested lawyer would conclude that it is: "(a) reasonably likely to harm or prejudice a client; or (b) of such a nature that it would reasonably cause a client to consider terminating the representation even in the absence of harm or prejudice."
The ABA explained that attorneys must notify clients of material errors because they have an obligation to effectively communicate about matters for which they are retained. Attorneys must keep clients reasonably informed about the status of their case. An attorney is not permitted to withhold information that is inconvenient or embarrassing.
As a result, attorneys must promptly notify clients of material errors. Whether notification is prompt will be a case- and fact-specific inquiry. An attorney may consult with his or her law firm's general counsel, another lawyer, or the lawyer's professional liability insurer before informing the client of the material error.
By contrast, an attorney has no ethical obligation to former clients to disclose errors, where the attorney first discovers the error after representation has concluded. "Good business and risk management reasons may exist for lawyers to inform former clients of their material errors when they can do so in time to avoid or mitigate any potential harm or prejudice to the former client. Indeed, many lawyers would likely choose to do so for those or other individual reasons. Those are, however, personal decisions for lawyers rather than obligations imposed under the Model Rules."
The ABA endorsed the opinion of the California State Bar's Committee on Professional Responsibility and Conduct, ("COPRAC"), which reached a similar conclusion with respect to California Rule of Professional Conduct 3-500 3. COPRAC similarly concluded that an California's Rules of Professional Conduct do not mandate an attorney advise a former client of possible malpractice claims after the client terminates the attorney client relationship.
Footnotes
1 In California, an attorney's duty of confidentiality is even more strict, and is governed by Rule 3-100 and Business & Professions Code section 6068.
2 For a description of how this rule applies in California, see Cal. State Bar Formal Opn. No. 2016-195.
3 "A member [of the State Bar of California] shall keep a client reasonably informed about significant developments relating to the employment or representation, including promptly complying with reasonable requests for information and copies of significant documents when necessary to keep the client so informed."
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