Legal Ethics

Ethics opinion stresses lawyers' duty of confidentiality when blogging

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Lawyers should be mindful of the duty of confidentiality when they engage in public commentary, including blogging and other online postings, according to an ethics opinion from the ABA Standing Committee on Ethics and Professional Responsibility.

Formal Ethics Opinion 480 explains that lawyers communicating about legal topics in public commentary must comply with the ABA Model Rules of Professional Conduct, including Rule 1.6(a), which provides: “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 duty of confidentiality is broad and includes all information related to the representation, not just information learned directly from the client. The reach of this rule is much broader than either the attorney-client privilege or the work product doctrine.

The opinion explains that this duty of confidentiality applies even if the information about the client’s representation is found in a court record or other public record. “The duty of confidentiality extends generally 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,” the opinion reads.

“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 continues.

The opinion acknowledges what it terms “First Amendment considerations” but emphasizes that free-speech rights are often limited when lawyers act in their representational capacities.

While the bulk of the opinion addresses lawyer public commentary with regard to Rule 1.6, it also explains that lawyers should realize that their public commentary must recognize other ethical constraints, citing Model Rules 3.5 and 3.6. Model Rule 3.5 prohibits lawyers from seeking to influence judges or jurors and Model Rule 3.6 prohibits lawyers from making extrajudicial statements that would have a “substantial likelihood of materially prejudicing an adjudicative proceeding.”

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