Quick Guide to Maintaining Confidentiality Online
It’s well understood that one of the most important duties a lawyer has towards their clients is maintaining their confidentiality. As per the ABA Model Rule of Professional Conduct 1.6, “[a] lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted [by specific exceptions identified in the Rule 1.6(b)].” Any violation of this obligation can lead to significant penalties from the client, the bar, or both.
Many law firms, after reviewing their state’s version of Rule 1.6, have concluded that this rule also impacts a lawyer’s social media accounts. As such, many lawyers take care to ensure that they don’t publish any of their clients’ confidential information online without their consent.
In March of 2018, the ABA’s Standing Committee on Ethics and Professional Responsibility issued an opinion on the intersection of law blogs or other public online statements and Model Rule 1.6: “Lawyers who blog or engage in other public commentary may not reveal information relating to a representation, including information contained in a public record, unless authorized by a provision of the Model Rules.”
This pronouncement has been called by some unnecessary or burdensome, given the requirements of Rule 1.6, so let’s look at some take-aways from the opinion for lawyers and law firms.
The Duty to Maintain Confidentiality Covers Many Mediums
To the surprise of no one, the opinion confirms that the rules still apply online, whether we’re talking about blogs, podcasts, Twitter, and so on.
While most attorneys know and accept that they cannot disclose any information that falls under the attorney-client privilege to anyone outside the relationship, Comment [2] of Model Rule 1.6 states that “[a] fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation.” As such, information protected as “confidential” is typically broader than what might be considered “privileged.” As the opinion confirmed, confidential information can even include the client’s identity.
The Duty to Maintain Confidentiality May Even Extend to Hypothetical Situations
Lawyers and law firms take steps to make sure that a client’s confidential information is not disclosed. That is because a client’s confidential information will generally stop being confidential if it is publicly known.
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