Legal Ethics

Can news on social media be 'generally known'? ABA opinion considers confidentiality exception

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A lawyer can’t use information relating to the representation of a former client to the onetime client’s disadvantage simply because the information has been discussed in open court, or is available in court records, in libraries, or in other public repositories, according to an ABA ethics opinion.

But some information that becomes widely recognized by the public or by the client’s industry may be fair game, even if it is disseminated through social media, according to Formal Opinion 479.

The opinion considers the “generally known” exception to former-client confidentiality in Rule 1.9(c)(1) of the ABA Model Rules of Professional Conduct. The exception allows a lawyer to use information relating to the representation of a former client to the former client’s disadvantage when the information has become “generally known.”

“Information that is publicly available is not necessarily generally known,” the opinion says. “Certainly, if information is publicly available but requires specialized knowledge or expertise to locate, it is not generally known” within the meaning of the model rule.

The ethics opinion settles on this definition: Information is generally known if (a) it is widely recognized by members of the public in the relevant geographic area; or (b) it is widely recognized in the former client’s industry, profession, or trade.

A footnote gives an example that appeared in a bankruptcy case. A lawyer may have drafted a property settlement agreement in a divorce case, and it may be in a case file in the courthouse where anyone could go, find it and read it. That doesn’t mean it is generally known. But if the property settlement involves a celebrity and it appears on the front page of tabloids, it is generally known.

But traditional media isn’t the only way information can become widely recognized, and therefore “generally known,” according to the opinion. Information can also become generally known through publication on websites or social media.

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