Hello everyone and welcome to this Ethics Alert which will discuss recent ABA Formal Opinion 511, which discusses and provides information and guidance regarding lawyers providing client information on a listserv. ABA Formal Opinion 511 is here: Formal Opinion 511 (americanbar.org)
According to the lengthy ABA opinion:
(ABA Model) Rule 1.6, Confidentiality, prohibits a lawyer from posting questions or comments relating to a representation to a listserv, even in hypothetical or abstract form, without the client’s informed consent if there is a reasonable likelihood that the lawyer’s questions or comments will disclose information relating to the representation that would allow a reader then or later to infer the identity of the lawyer’s client or the situation involved. A lawyer may, however, participate in listserv discussions such as those related to legal news, recent decisions, or changes in the law, without a client’s informed consent if the lawyer’s contributions will not disclose, or be reasonably likely to lead to the disclosure of, information relating to a client representation.
The opinion also refers to ABA Formal Opinion 496 (2021), “which cautioned lawyers about responding to online criticism: Lawyers ‘who choose to respond online must not disclose information that relates to a client matter or that could reasonably lead to the discovery of confidential information by another.’” (Emphasis added).
The ABA opinion further states:
Finally, it bears emphasizing that lawyer listservs serve a useful function in educating lawyers without regard to any particular representation. Lawyers use listservs to update one another about newly published decisions and articles or to share recommendations for helpful contractors or fellow practitioners. Comment 8 to Rule 1.1 advises lawyers to “keep abreast of changes in the law and its practice,” and lawyer listservs can help in doing so. These uses, unrelated to any particular representation, would not require a lawyer to secure the informed consent of a client. A lawyer must, however, remain aware of the possible risks to confidentiality involved in any posts to a listserv. Even a general question about the law, such as a request for cases on a specific topic, may in some circumstances permit other users to identify the client or the situation involved. Therefore, before any post, a lawyer must ensure that the lawyer’s post will not jeopardize compliance with the lawyer’s obligations under Rule 1.6.
Bottom line: According to this ABA opinion, lawyers are prohibited from providing client confidential information on a listserv, even if it is in hypothetical form, if there is a reasonable likelihood that the lawyer’s communications will disclose confidential information that would allow the inference of the identity of the lawyer’s client or the situation involved, unless the client provides informed consent .
Be careful out there.
As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding ethics, risk management, or other issues, please do not hesitate to contact me.
Disclaimer: this communication is not an advertisement, does not contain any legal advice, does not create an attorney/client relationship, and the comments herein should not be relied upon as legal advice by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
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