May Attorneys Ethically Seek Guidance from Online Forums? Yes, But…

Litigation

12.3.2024

An attorney belongs to a specialty bar organization in which members routinely post questions, comments and tips on an online forum or through an automated email management system. The attorney seeks to post a request for advice related to a client issue while anonymizing all identifying information. May she do so?

Maybe, but this can be a trap for the unwary.

Confidentiality

The answer revolves around the duty of confidentiality under Rule 1.6. Under the Virginia Rules of Professional Conduct, Rule 1.6(a) provides that:

A lawyer shall not reveal information protected by the attorney-client privilege under applicable law or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c).

So, under the protection afforded under Rule 1.6, non-disclosure obligations apply to (1) information covered by the attorney-client privilege, (2) information that the client has requested be kept secret, and (3) information that the disclosure of which would be embarrassing or detrimental to the client (or its interests). It bears highlighting that the ethical duty of confidentiality is much, much broader than the attorney-client privilege. Comment 3 to Rule 1.6 explains that:

The principle of confidentiality is given effect in two related bodies of law, the attorney-client privilege (which includes the work product doctrine) in the law of evidence and the rule of confidentiality established in professional ethics. The attorney-client privilege applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information protected by the attorney-client privilege under applicable law or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law.

For example, during the course of the representation, the attorney discovers in her research that the client filed for bankruptcy protection or had a felony conviction. The information is not protected by the attorney-client privilege. Yet, notwithstanding the “public” nature of the proceedings, disclosure of such information during the relationship (to the extent deemed embarrassing) would violate Rule 1.6 absent an exception, such as informed client consent or the disclosure is impliedly authorized in order to carry out the representation.

In addition:

The duty of confidentiality extends to former clients. Rule 1.6, cmt 18 (“The duty of confidentiality continues after the client-lawyer relationship has terminated.”).
Under Rule 1.9(c)(1), a lawyer is generally prohibited from “using” information related to, or gained in, the course of the prior representation to the former client’s detriment absent an exception or when the information has become “generally known” (which has its own analysis).
Under Rule 1.9(c)(1), a lawyer is generally prohibited from “revealing” information relating to the representation of the former client.
The lawyer may violate Rule 1.6 in disclosing information without regard to the source or nature of the information. In other words, the fact that the information is obtained from a source other the client (e.g., publicly available records) may still grant to it protection. This may be so even where the information is known or disclosed by parties outside of the attorney-client relationship.

Asking Your Peers

So, returning to the question. Can a lawyer post information related to a client matter to similarly situated colleagues with the aim of gaining their counsel and for the benefit of the client?

As explained in Formal Opinion 511 by the American Bar Association’s Standing Committee on Ethics and Professional Responsibility:

Without the client’s informed consent, Rule 1.6 forbids a lawyer from posting questions or comments relating to a representation—even in hypothetical or abstract form—if there is a reasonable likelihood that the lawyer’s posts would allow a reader then or later to infer the identity of the lawyer’s client or the particular situation involved, thereby disclosing information relating to the representation. A lawyer may, however, participate in listserv discussions such as those related to legal news, recent decisions, or changes in the law, if the lawyer’s contributions do not disclose information relating to any client representation. The principles set forth in this opinion regarding lawyers’ confidentiality obligations when they communicate on listservs apply equally when lawyers communicate about their law practices with individuals outside their law firms by other media and in other settings, including when lawyers discuss their work at in-person gatherings.

While Virginia has not adopted an opinion on the handling of such posts, Formal Opinion 511 is consistent with the treatment of confidential information. Further guiding the review of what is and is not appropriate is the recognition that clients benefit from attorneys consulting with one another. Comment 5a to Rule 1.6 provides:

Lawyers frequently need to consult with colleagues or other attorneys in order to competently represent their clients’ interests. An overly strict reading of the duty to protect client information would render it difficult for lawyers to consult with each other, which is an important means of continuing professional education and development. A lawyer should exercise great care in discussing a client’s case with another attorney from whom advice is sought. Among other things, the lawyer should consider whether the communication risks a waiver of the attorney-client privilege or other applicable protections. The lawyer should endeavor when possible to discuss a case in strictly hypothetical or abstract terms. In addition, prior to seeking advice from another attorney, the attorney should take reasonable steps to determine whether the attorney from whom advice is sought has a conflict. The attorney from whom advice is sought must be careful to protect the confidentiality of the information given by the attorney seeking advice and must not use such information for the advantage of the lawyer or a third party.

Special Circumstances: In-House Lawyers

A slightly more directed question is whether an attorney who represents a single or institutional client (e.g., in-house counsel or a government lawyer) may post queries seeking information on a client-related matter. The general response is that a description of specific facts or hypotheticals that are easily attributable to the client could violate Rule 1.6 absent informed client consent. That said, the focus should be again on the issue of confidentiality and, if it is confidential, informed client consent.

The ABA Formal Opinion notes that:

[I]f a matter is receiving media coverage or the group of listserv participants is comprised of a small, closely connected legal community, the risk of a Rule 1.6 violation is likely to be too great to permit the lawyer to post a hypothetical relating to the matter without the informed consent of the client. For example, where the listserv participants are familiar with each other’s practice because they practice in a limited geographic area or a specialized practice setting, posting a hypothetical based on information relating to the representation of the client will be more likely to lead to disclosure of the client’s identity to some other participant on the listserv.

For example: A government attorney involved in land use issues queries whether anyone has experience with statutory awards for lost profit claims made by fast food restaurants in eminent domain proceedings. Presumably, the attorney has such a matter pending or contemplated. A general query for individuals with such a background may be revelatory as to a potential issue facing the government entity, but is not likely revealing a confidence on its face. However, if the institution of eminent domain proceedings in that jurisdiction is one subject to a lot of public or media attention, the query and any responses could be seen as revelatory or inferred as such.

The “take away” is that it is very fact specific and should be judged on whether the post could reasonably lead to disclosure of confidential client information. While by no means the determinant as to whether a posting is violative of Rule 1.6, an easy question is “Would I want opposing counsel (or my elected board or my county administrator) seeing my post (and any expected responses)?

Tips on Online Postings

It is critically important for lawyers to be able to consult with attorney colleagues; it benefits the profession, professionalism and the client. In doing so, here is some general guidance:

Client Consent. If the posting of information could reasonably lead to information related to the client or the representation, obtain informed consent from the client.
Use General Questions/Hypotheticals. Best practice in posing any query is to avoid referencing client specific details; anonymize the query as much as possible (even as it is recognized that such may not be enough).
Use Broad Information Requests. As Formal Opinion 511 notes: “Careful lawyers will often be able to use listservs to ask fellow practitioners for cases and articles on topics, for forms and checklists, and for information on how various jurisdictions address a court-connected concern without enabling other lawyers to identify the lawyer’s client or the situation involved. Posting this sort of inquiry on a listserv, to the extent possible without disclosing information relating to the representation, may have advantages over a lawyer-to-lawyer consultation precisely because it is broadly disseminated.”
Avoid Identifiable Information. Confirm before posting that you do not reveal or suggest client identities or information. Ask yourself if a colleague would likely be able to tell who your client is with a little sleuthing.

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Jeff Geiger assists law firms and attorneys with matters related to ethics, bar discipline, legal malpractice, and professional responsibility. If you have any questions, please contact Jeff at (804) 783-7248 or jgeiger@sandsanderson.com.