ABA Ethics Opinion

 

The American Bar Association (ABA) last week issued Formal Opinion 511 stating that, under Rule 1.6 of the Model Rules of Professional Conduct, attorneys do not have implied authorization to reveal information about a client’s representation to a wider group of lawyers by posting a comment or inquiry on a listserver discussion group. To do so within ethical boundaries, lawyers must have the client’s informed consent.

Rule 1.6 prohibits lawyers from revealing information relating to the representation of a client unless the client gives informed consent. It is not limited to information subject to attorney-client privilege. Extending the rule to listserver postings, the opinion pointed out that posting to a listserver is not the same as seeking the counsel of an individual lawyer or select group of lawyers in a client matter. Participants in a listserver discussion group are often unknown to the person posting. As such, attorneys cannot count on the audience to keep any disclosures confidential. In fact, the opinion noted, there is no way for the posting lawyer to ensure that their client’s information will not be disseminated further by another listserver participant, used against the client, or even seen by those representing another party in the same case.

Similarly, lawyers cannot skirt the rule by posting in “anonymized, hypothetical, or [ ] abstracted form” if there is a reasonable likelihood that someone seeing the posting could discover the client’s identity. Posting in hypothetical or anonymous terms must therefore also be done only with the client’s informed consent. Rule 1.0(e) provides guidelines for what constitutes informed consent.

The opinion recognized that listservers can fulfill a useful educational purpose for lawyers. It acknowledged that these discussion groups can be a good way for attorneys to stay abreast of changes in the law, update each other about new case law, and share recommendations. Using listservers in these ways is unrelated to specific client matters and can therefore be done without obtaining a client’s informed consent. The opinion cautioned, however, that lawyers should remain vigilant about the confidentiality risks listservers pose and should be mindful of ethical boundaries before posting anything to a listserver.

Attorney Amir Tahmassebi, who is a co-chair of the Chicago Bar Association’s professional responsibility committee, said “In my view, ABA Opinion 511 correctly interprets Rule 1.6 and provides important guidance relating to disclosing confidential information. It highlights the importance of attorneys protecting their client’s confidential information, which is the bedrock of the attorney-client relationship."