• Lawyers can’t publicly comment on information relating to representation of client, unless client gives authorization
• ABA committee says prohibition applies even if the information is public or “generally known”
Lawyers can’t blog about a client-even when the information is already public-unless the client gives authorization, the American Bar Association’s latest ethics opinion says.
Lawyers must use caution when commenting on their cases on social media. Even if information is in the public record or otherwise known, a lawyer can disclose it only if the client gives express or implied consent.
The ABA’s Mar. 6 ethics opinion discussed how a lawyer’s “public commentary” implicates three ethics rules-Rules 1.6 (confidentiality), 3.5 (impartiality/decorum of tribunal), and 3.6 (trial publicity). The committee said public commentary could also implicate advertising rules and create positional conflicts, but the opinion didn’t directly tackle these issues.
The ethics committee defined “public commentary” as remarks made in public via online publications like blogs, listserves, web postings, tweets, webinars, podcasts, and in print media like magazines, treatises, white papers, and law reviews.
The ethics committee said Rule 1.6’s protections are “far broader than attorney-client privileged information.” The rule applies to information a client tells a lawyer in confidence, but also to the client’s identity and “all information relating to the representation, whatever its source,” the committee said.
Information in public documents such as a court order are “not exempt from the lawyer’s duty of confidentiality under Model Rule 1.6.” Likewise, there is no exception under Rule 1.6(a) for information that is “generally known.” The committee cites several bar opinions and cases from across the country that similarly interpret Rule 1.6’s proscriptions.
Lawyers also must use caution when using hypotheticals so people can’t figure out which client the hypothetical is discussing.
So unless the client has given informed consent or the disclosure is impliedly authorized, lawyers can’t include the client’s information in public commentary without violating 1.6. The committee assumed for purposes of the opinion that the additional exceptions listed under 1.6(b)-such as disclosures to prevent death or bodily harm-are not applicable to a lawyer’s public commentary.
The committee said that though lawyers have First Amendment rights, those rights are “not without bounds.”
The committee discussed in a footnote a 2013 Virginia case that held a lawyer’s right to free speech permitted him to blog about his client’s public proceedings that had concluded. The committee said that case is “limited to its facts” and noted that Virginia’s Rule 1.6 differs from the Model Rule.
But even if a lawyer obtains consent for any public commentary, the lawyer must still avoid trying to influence a judge or jury (Rule 3.5) and avoid statements that “have a substantial likelihood of materially prejudicing” pending litigation (Rule 3.6), the committee said.
The opinion is ABA Standing Comm. on Ethics & Prof’l Responsibility, Formal Op. 480, 3/6/2018.
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