Consider confidentiality before you post

The legal community - whether in business development, marketing, or client communications - has largely pivoted to being online. This wave of technology, even more evident since the pandemic, encourages growth and broadens the ways people are able to connect with one another. It makes sense, then, that lawyers capitalize on these resources. Many lawyers and law firms tap into social media platforms to market, network, discuss the decisions of large cases or legal news, and communicate with clients.

While casting a wider net in the public domain of the internet is great for business development and building community, attorneys need to be cautious that what they post meets their ethical obligations to their clients. Here are some ways that lawyers can make use of online commentary while also ensuring these posts maintain client confidences.

The duty of confidentiality is just as applicable online 

The purpose of the duty of confidentiality a lawyer owes a client is to establish trust and encourage full and transparent communications. ABA's Formal Opinion 480, issued in 2018, makes clear that this paramount ethical consideration applies everywhere, including online.

The ABA's Standing Committee on Ethics and Professional Responsibility specifically examined lawyers' confidentiality obligations when blogging and making public commentary. Notably, Opinion 480 confirmed, as many lawyers presumed, that the obligations of the Rules of Professional Conduct do not disappear when the medium is virtual, regardless of whether lawyers are participating in blogs, website postings, social media, webinars, podcasts or other online public commentary.

California's own strict rules on confidentiality align with the ABA's Opinion 480. Governed by Business and Professions Code section 6068, California law requires a lawyer "[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client."  Rule 1.6, Comment [1]. California's Standing Committee on Professional Responsibility and Conduct (COPRAC) Formal Opinion No. 2016-196 expressly pointed to Comment [4] of ABA's Model Rule 1.6 to acknowledge that an attorney's online blog describing a client's testimonial could violate client confidentiality even if the client's name is not included. COPRAC stated that the "prohibition against revealing client confidential information also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person."  COPRAC Op. No. 2016-196, fn. 15. Disclosures can also happen via firm websites or blogs. COPRAC No. 2016-196 (quoting Ca. State Bar Formal Opinion No. 2001-155). As a result, all such blogged and other electronic communications remain subject to the Rules of Professional Conduct regulating attorney advertising.

The duty of confidentiality may apply even when information is public

The information protected by California Rule of Professional Conduct 1.6 is broader than that protected by attorney-client privilege. Confidential information encompasses not only privileged communications, but also can include client identity, business information, and other sensitive information. See Rule 1.6, Comment [2].

Notably, just because information becomes public does not necessarily mean that the lawyer no longer is obligated to protect it. As confirmed by Opinion 480, Rule 1.6 still requires lawyers to protect information that is otherwise "generally known" or "contained in a public record," absent client consent or other steps.

Lawyers and law firms may have obligations to refrain from online commentary, even for those client details that can be publicly confirmed from other sources, absent client consent. Opinion 480 informs practitioners that "[l]awyers who blog or engage in other public commentary may not reveal information relating to a representation that is protected by Rule 1.6(a)," unless such disclosure is authorized. If there is information about a client in a court order or other public record, the lawyer's duty of confidentiality still applies 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." 

California's narrow exceptions to the duty of confidentiality

Rule 1.6(b) states a lawyer "may, but is not required to" reveal protected client confidential information "to the extent that the lawyer reasonably believes the disclosure is necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in death of, or substantial bodily harm to, an individual[.]" Ca. R. of Prof. Conduct Rule 1.6(b).

Opinion 480 suggests that these exceptions are less likely to be at play when it comes to a lawyer providing online commentary: "Because it is highly unlikely that a disclosure exception under Rule 1.6(b) would apply to a lawyer's public commentary, we assume for this opinion that exceptions arising under Rule 1.6(n) are not applicable." 

Given the narrow set of circumstances in which Rule 1.6(b) might be employed, attorneys should consider other exceptions before making public disclosures of confidential information - namely, informed consent of the client. Rule 1.6(a) states that "[a] lawyer shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1) unless the client gives informed consent[.]" Indeed, it may be beneficial for lawyers who are unsure of what can be disclosed (or if the client would object to the lawyer commenting on some publicly available information) to simply discuss the issue with the client to see if they consent.

Online commentary can multiply the risk of inadvertent disclosure

Lawyers commonly describe stories of their past client successes to inform the public of their experience and solicit potential work. Or, they might share the progression of prior cases as a way to crowd-source techniques and strategies without intentionally revealing confidential information.

However, describing these experiences online can open a larger can of worms because the potential audience can be massive. The Los Angeles County Bar Association (LA Bar) cautioned against the heightened risks lawyers might encounter by communicating through social media. The reasons for more risk include the fact that it is unclear who is the true recipient of an electronic communication, the multitude of ways that information can be shared once it is obtained, and that "information distributed electronically has a continuing life[.]" Op. No. 529 (Aug. 23, 2017).

Formal Opinion 480 explains that lawyers are not immunized just by labeling commentary as hypothetical, or by being otherwise vague in describing client work. Opinion 480 advised that if there is a reasonable likelihood that a third party could ascertain the identity or situation of the client from the "hypothetical" facts, it can still be a violation of the attorney's duty of confidentiality to the client. In light of this, lawyers are well-advised to take care to disguise their hypothetical well enough that a third party cannot ascertain the identity or situation of the client. The LA Bar reiterated the ABA's advice in its opinion regarding ethical risks when using social media, explaining that a lawyer could violate the duty of confidentiality inadvertently, even if a client's name is not disclosed, where a third person could "infer the client's identity from the context of the disclosure." Op. No. 529.

Social media can be an invaluable asset to small and large law firms alike. As such, it is important that lawyers carefully consider their obligations to their clients before clicking the "post" button.