Quick Guide to Maintaining Confidentiality Online

It’s well understood that one of the most important duties a lawyer has towards their clients is maintaining their confidentiality. As per the ABA Model Rule of Professional Conduct 1.6, “[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 specific exceptions identified in the Rule 1.6(b)].” Violating this obligation can lead to significant penalties from the client, the bar, or both.

Many law firms, after reviewing their state’s version of Rule 1.6, have concluded that this rule also impacts a lawyer’s social media accounts. As such, many lawyers take care to ensure that they don’t publish any of their clients’ confidential information online without their consent.

In March of 2018, the ABA’s Standing Committee on Ethics and Professional Responsibility issued an opinion on the intersection of law blogs or other public online statements and Model Rule 1.6: “Lawyers who blog or engage in other public commentary may not reveal information relating to a representation, including information contained in a public record, unless authorized by a provision of the Model Rules.”

This pronouncement has been called by some unnecessary or burdensome, given the requirements of Rule 1.6, so let’s look at some take-aways from the opinion for lawyers and law firms.

The Duty to Maintain Confidentiality Covers Many Mediums

To the surprise of no one, the opinion confirms that the rules still apply online, whether we’re talking about blogs, podcasts, Twitter, and so on.

While most attorneys know and accept that they cannot disclose any information that falls under the attorney-client privilege to anyone outside the relationship, Comment [2] of Model Rule 1.6 states that “[a] fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation.” As such, information protected as “confidential” is typically broader than what might be considered “privileged.” As the opinion confirmed, confidential information can even include the client’s identity.

The Duty to Maintain Confidentiality May Even Extend to Hypothetical Situations

Lawyers and law firms take steps to make sure that a client’s confidential information is not disclosed. That is because a client’s confidential information will generally stop being confidential if it is publicly known.

Opinion 480 extends these protections further, by stating that even if there is information about a client in a court’s order or any other public records, the lawyer’s duty still applies to “information related to a representation, whatever its source and without regard to the fact that others may be aware of or have access to such knowledge.” Although Rule 1.6 has been enacted differently in each jurisdiction, the opinion advises that “Rule 1.6 does not provide an exception for information that is ‘generally known’ or contained in a ‘public record.’”

Thus, lawyers and law firms may be obliged to refrain from online commentary, even if the clients’ information can be confirmed from other public sources.

The opinion also concludes that lawyers should take care as even providing hypothetical situations can be in violation of Rule 1.6. This is common for lawyers who are seeking others’ guidance, but they typically take great care to disguise the hypothetical well enough that a third party can’t tell who the client is.

Rule 1.6(b) May Not Apply to Some Statements

Model Rule 1.6(b) provides several exceptions to the general prohibition on revealing clients’ confidential information. It allows attorneys to reveal confidential information if it is required to prevent certain death or bodily harm, to prevent their client from committing a crime, to defend themselves against a claim brought by their client, or to comply with a court order. These exceptions, though, can vary from jurisdiction to jurisdiction.

The opinion suggests, however, that these exceptions are less likely to be allowed when it comes to online commentary: “because it is highly unlikely that a disclosure exception under Rule 1.6(b) would apply to a lawyer’s public commentary, we assume for this opinion that exceptions arising under Rule 1.6(b) are not applicable.”

Attorneys may consider looking for other exceptions that would allow for the public disclosure of client confidential information, such as those mentioned in Rule 1.6(a), one being the client’s consent. If an attorney is ever in doubt about what they can and cannot publicly disclose, they can simply discuss the matter with their client to see if they have their consent.

Criticizing the Opinion

There are some who criticize the opinion, stating that it unnecessarily implicates attorneys’ First Amendment rights and it needlessly prevents them from commenting on information that is publicly available. The opinion, however, states that restricting lawyers’ public speech is nothing new. Their conduct may be “constitutionally restrained” by professional standards, in that lawyers may have their free speech rights limited when it comes to client representations. There are also, of course, certain things that lawyers cannot do or say by mere virtue of their professional obligations.

As mentioned earlier, some critics say that this opinion needlessly restricts lawyers from commenting on information that is publicly available. They argue that if any information is publicly published, such as in a court order, then it is no longer confidential, and lawyers no longer have a duty to protect it.

There is something of a divide between states on whether lawyers should still try to protect information that is public. However, lawyers and law firms can learn from this opinion and ensure that their public statements don’t implicate any ethical issues.

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