Ride the Lightning

New ABA Opinion on the Ethics of Blogging Emphasizes Confidentiality Duty

March 14, 2018

ABA Formal Opinion 480 was released on March 6^th by the ABA Standing Committee on Ethics and Professional Responsibility. The opinion stresses that lawyers should be mindful of the duty of confidentiality when they engage in public commentary, including blogging and other online postings.

The opinion says 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 also answers an often-asked question by noting 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 states.

"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)."

Though lawyers often assert their First Amendments rights in these cases, the opinion notes that free-speech rights are often limited when lawyers act in their representational capacities.

Most of the opinion addresses lawyer public commentary under Rule 1.6, but it also explains that lawyers should realize that their public commentary is governed by other ethical constraints, including 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."

I was glad to see this opinion issued. I have been appalled by some blog posts in which client confidential data was revealed with the lawyer asserting that the information was available in a court record. For the most part, such records remain private in fact in spite of being technically public, but splashing the information in a blog post removes all privacy – and lives forever online. I know others have argued that the First Amendment triumphs – and Virginia's Supreme Court agreed in Hunter v. The Virginia State Bar. That decision was a controversial one.There are certainly cases which are very much public by their nature – and there I would agree with the First Amendment argument. But most cases never see the light of day publicly – is it ethical for lawyers to reveal their confidential data online potentially causing damage to their clients? I think this new ABA opinion gets it right.

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