Lawyer Bloggers Beware: “Public” Client Information Is Still Confidential

Lawyers love to talk about their client success stories and latest wins, particularly on websites, blogs, LinkedIn and other social media.  This form of lawyer self-promotion is particularly pronounced in litigation matters, where the victorious lawyers and their firms routinely, and proudly, announce to the world what wonderful result they achieved for their client.

Many lawyers believe that since their matter is public, and the result favorable, they are free to publicize that “public” information without running afoul of their ethical duties.

News flash: They are probably wrong.

A lawyer’s duty of client confidentiality remains inviolate even if their role in the representation or the results of the matter they worked on are known to everyone on the planet.

But how can this be?  If something is published, common sense dictates, it is no longer confidential.   And if it is no longer confidential, then why would I, as the lawyer who worked on the matter that everyone else is talking about, be prohibited from talking or writing about it?

Common sense, say hello to Rule 1.6 of the Rules of Professional Conduct–Confidentiality of Information.

With several well-defined and irrelevant exceptions, Rule 1.6(a) prohibits a lawyer from revealing “information relating to the representation of a client” unless: (i) “the client gives informed consent”; or (ii) the disclosure is “impliedly authorized in order to carry out the representation.”

There are some exceptions–none of which fall within the realm of education, marketing or self-promotion.  For example, a lawyer may have an obligation to disclose client confidential information if reasonably necessary to prevent reasonably certain death or substantial bodily harm to another.  That is a far cry from blogging about your latest victory.

The majority view is that there is no “publicly available” exception to the lawyer’s duty of confidentiality.  The duty of confidentiality (Rule 1.6) applies even if the information relating to the representation is “generally known” or is contained in a public record.  See ABA Formal Opinion 480.   As the ABA opinion explains:

Significantly, information about a client’s representation contained in a court’s order, for
example, although contained in a public document or record, is not exempt from the lawyer’s duty
of confidentiality under Model Rule 1.6.  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.

As per the ABA opinion, “Even client identity is protected” under Rule 1.6.

The duty of confidentiality encourages full and frank communications between clients and their lawyers.  By agreeing to represent a client in any matter, a lawyer and their firm assume a burden to strictly maintain confidential ANY “information” about the matter.  Period.  While there are some jurisdictions that take a different view, they are the minority approach.

Clients may have little or no control about what the media publicizes about their “information.”  But they can and should expect their attorneys to keep mum and not disclose information about their matter even if it is a great result or is used for educational purposes.  At least not without the client’s blessing.

Consequently, before publicizing “public” information about a representation, lawyers and firms should exercise caution.  Even if it seems illogical, lawyers remain bound by their ethical obligation to maintain client “information” as confidential. Therefore, it is crucial for legal professionals to be aware that even in a public forum, confidential client information should always be treated as such.

The bottom line is this: think before you post.  The best practice for lawyers and law firms who wish to publicly disclose information about any representation is to get permission from the client first.  Who knows, they may share your enthusiasm.  But don’t assume; for all you know, the client may wish to not have you, their counsel, speaking on the subject.

That is the client’s right.  Respect it.  By asking first, you demonstrate your commitment to the ethical practice of law.

 

2 thoughts on “Lawyer Bloggers Beware: “Public” Client Information Is Still Confidential”

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