The American Bar Association’s Standing Committee on Ethics and Professional Responsibility (ABA Committee) issued Formal Opinion 480 on March 6, titled, “Confidentiality Obligations for Lawyer Blogging and Other Public Commentary” (the Opinion). The ABA Committee’s Opinion serves as a reminder of certain ethical obligations for lawyers who engage in blogging and online commentary, as well as participate in webinars, white papers, podcasts, and similar public forums. Specifically, the Opinion covers three main Model Rules: 1.6(a) (Confidentiality of Information), 3.5 (Impartiality and Decorum of the Tribunal), and 3.6 (Trial Publicity).
Regarding Model Rule 1.6(a), the ABA Committee emphasizes that, “unless that client has given informed consent to the disclosure, the disclosure is impliedly authorized to carry out the representation, or the disclosure is permitted by Model Rule 1.6(b),” a lawyer must maintain the confidentiality of all information relating to the lawyer’s representation while blogging or participating in similar activities. Among other observations, the ABA Committee further analyzes this key obligation, noting that (1) the obligation applies to all information relating to the representation (including the fact of the representation itself), not only information shared by the client in confidence; (2) information that becomes part of a public record or generally known is not exempt; and (3) using “hypothetical” language does not clear the lawyer from a violation of Model Rule 1.6(a) “if there is a reasonable likelihood that a third party may ascertain the identity or situation of the client from the facts set forth in the hypothetical.”
Beyond a lawyer’s confidentiality obligations, the Opinion points to other Model Rules to keep in mind while blogging. For example, Model Rule 3.5 prohibits a lawyer from attempting “to influence a judge, juror, prospective juror, or other official by means prohibited by law.” Cited disciplinary actions in the Opinion would lead a lawyer engaging in blogging or other online communications to avoid any actions that could be seen as communicating with potential jurors during proceedings, even after the lawyer has secured the client’s permission to share information related to a representation. Lastly, the Opinion also notes that lawyers blogging should also keep in mind Model Rule 3.6, which, subject to some exceptions, prohibits lawyers who are participating or have participated in an investigation or litigation of a matter from making extrajudicial statements “that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”
While the Opinion is not exactly groundbreaking or surprising, it does serve as a helpful reminder to lawyers active in blogging and social media.