ABA issues formal guidance to lawyers on limits of blogging and representation
Wednesday, March 7, 2018
Posted by: Joe Menden
An American Bar Association committee on ethics has issued a formal opinion explaining how the duty of confidentiality applies to lawyers who blog or engage in other social commentary related to a representation.
Formal Opinion 480 warns lawyers against using hypotheticals in blogging and social commentary when there is a “reasonable likelihood” that a third party might ascertain the identify or situation of the client from the facts in the hypothetical.
“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),” the opinion said.
Under the ABA's Model Rule 1.6(a) a lawyer has a duty of confidentiality. Supporting language to the model rule, known as a Comment, emphasizes that a fundamental principle of the legal profession is that a lawyer must not reveal any information relating to the representation without the informed consent of the client. The opinion notes that unless one of the exceptions to Model Rule 1.6(a) applies to a situation, the lawyer is barred for commenting publicly about the representation.
The opinion is intended to provide guidance on the parameters of blogging and offering social commentary as more lawyers engage in such activity. It also serves as guidance to state licensing agencies to help interpret their own rules of professional conduct. The opinion adds that the ethical rules of many jurisdictions establish confidentiality rules even before formal representation begins and well beyond the end of the professional relationship.