Be careful about touting your big courtroom victory on social media.
Even mentioning facts that are in the public record – a trial verdict or case outcome, for instance – could be an ethical breach.
That’s the message of ABA Formal Opinion 480, issued in March by the ABA’s Standing Committee on Ethics and Professional Responsibility.
The opinion imposes an enhanced duty of confidentiality for lawyers who communicate publicly on the Internet. This includes blogs, Facebook posts, listservs, website news, tweets, videos, webinars, podcasts and other more traditional formats.
According to the opinion, confidentiality is so fundamental to the lawyer-client relationship that it applies even to information that is publicly available and easily obtained.
“On the surface, it sounds nonsensical,” says University of San Francisco law professor and ethics expert Lara Bazelon in this ABA Journal article. “Why should a lawyer be sanctioned for talking about information that everyone knows already? But a lawyer isn’t an objective public commentator or an ordinary member of the public. A lawyer is her client’s advocate, and in that role she must elevate the client’s interests above all else. If the client does not want the lawyer to talk about the case, even information that is already in the public domain, she should refrain from doing so.”
ABA opinions are not binding on states. But North Carolina, like most other jurisdictions, looks to the ABA and the Model Rules for guidance in interpreting and enforcing its own ethics rules.
Confidentiality Rule 1.6
The foundation of FO 480 is Rule of Professional Conduct 1.6(a) which says: “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).”
This is a sweeping prohibition. Its scope is broader than the attorney-client privilege or the work product doctrine. It covers everything related to the representation – not just information learned directly from the client.
“An attorney’s duty of confidentiality to the client is a foundational component of the attorney-client relationship,” says Charlotte attorney and ethics writer Kelly Rains Jesson in the ABA Journal article. “As the opinion advises, there is no doubt that attorneys need to be cautious about violating Rule 1.6 on social media when posting about a case without client consent, no matter the nature of or source of the information.”
Opportunity and Peril
The opinion extends the duty of confidentiality generally to any information related to the representation – regardless of its source or whether others have access to it.
“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),” the opinion says.
“The lawyer’s overriding obligation is to say and do nothing to harm the client’s interests, defined broadly to include the client’s case outcome, the client’s reputation-based concerns, and the client’s desire for privacy,” says Bazelon.
The bottom line: Facebook, Twitter and new technologies have changed the way lawyers communicate. This has created opportunity – and peril – for practitioners.