The American Bar Association Standing Committee on Ethics released Formal Opinion 511 on May 8. The opinion addresses whether, to obtain assistance in a representation from other lawyers on a listserv discussion group, or post a comment, a lawyer is impliedly authorized to disclose information relating to the representation of a client or information that could lead to the discovery of such information under Model Rule 1.6.
Rule 1.6 forbids a lawyer from posting questions or comments relating to a representation — even in hypothetical or abstract form — if there is a reasonable likelihood the lawyer’s posts would allow a reader then or later to infer the identity of the lawyer’s client or the particular situation involved, thereby disclosing information relating to the representation, according to the opinion.
The opinion notes a lawyer may participate in listserv discussions such as those related to legal news, recent decisions or changes in the law, if the lawyer’s contributions don’t disclose information relating to any client representation.
The committee added the principles set forth in Formal Opinion 511 regarding lawyers’ confidentiality obligations when they communicate on listservs apply equally when lawyers communicate about their law practices with individuals outside their law firms by other media and in other settings, including when lawyers discuss their work at in-person gatherings.
What are the Relevant Principles?
Rule 1.6 protects “all information relating to the representation, whatever its source” and isn’t limited to communications protected by attorney-client privilege. A lawyer may not reveal even publicly available information, such as transcripts of proceedings in which the lawyer represented a client, according to the opinion.
Because Rule 1.6 restricts communications that “could reasonably lead to the discovery of” information relating to the representation, lawyers are generally restricted from disclosing such information even if the information is anonymized, hypothetical or in abstracted form, if it’s reasonably likely someone learning the information might then or later ascertain the client’s identity or the situation involved, the opinion added.
The opinion noted lawyers may disclose information relating to the representation with the client’s informed consent, which is defined in Rule 1.0(e). Additionally, Rule 1.6(a) permits a lawyer to reveal information relating to the representation of a client “if the disclosure is impliedly authorized in order to carry out the representation.” As a general matter, lawyers must obtain their client’s informed consent before engaging lawyers in the representation other than lawyers in their firm.
Seeking Advice on a Listserv Isn’t Impliedly Authorized
In this opinion, the question presented is whether lawyers are impliedly authorized to reveal information relating to the representation of a client to a wider group of lawyers by posting an inquiry or comment on a listserv for advice. They are not, according to the opinion.
Participation in most lawyer listserv discussion groups is significantly different from seeking out an individual lawyer or personally selected group of lawyers practicing in other firms for a consultation about a matter, according to the opinion. Because protections against wider dissemination are lacking, posting to a listserv creates greater risks than the lawyer-to-lawyer consultations envisioned by ABA Formal Ethics Opinion 98-411.
Without informed client consent, a lawyer participating in listserv groups shouldn’t disclose any information relating to the representation that may be reasonably connected to an identifiable client. The opinion also notes that while it focuses on lawyers’ efforts to obtain information from other lawyers for the benefit of a legal representation, the obligation to avoid disclosing information relating to a representation applies equally when lawyers post on listservs for other purposes.
When Can You Seek Advice on a Listserv?
The ethics committee explained not all inquiries to a listserv designed to elicit information helpful to a representation will disclose information relating to the representation. In some situations, because of the nature of the lawyer’s practice, the relevant client or situation involved will never become known, and therefore the lawyer’s anonymized inquiry can’t be identified with a specific client or matter. In other cases, the question may be so abstract and broadly applicable that it can’t be associated with a particular client, even if others know the inquiring lawyer’s clientele.
In circumstances like these, a lawyer may post general questions or hypotheticals because there’s no reasonable possibility any listserv member, or anyone else with whom the post may be shared, could identify the specific client or matter, according to the opinion.
The committee notes careful lawyers will often be able to use listservs to ask fellow practitioners for cases and articles on topics, for forms and checklists and for information on how various jurisdictions address a court-connected concern without enabling other lawyers to identify the lawyer’s client or the situation involved. Posting this sort of inquiry on a listserv, to the extent possible without disclosing information relating to the representation, may have advantages over a lawyer-to-lawyer consultation precisely because it’s broadly disseminated.
A lawyer must, however, remain aware of the possible risks to confidentiality involved in any posts to a listserv, according to the opinion. 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. Before any post, a lawyer must ensure the post will not jeopardize compliance with the obligations under Rule 1.6.