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Post on July 23rd, 2018

The American Bar Association Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 480 Confidentiality Obligations for Lawyer Blogging and Other Public Commentary on March 6, 2018. The Opinion notes that lawyers comment on legal topics in the newest format of online publications such as blogs, listservs, online articles, website posting and brief online statements such as Twitter.

Lawyers also communicate about legal topics in traditional print media, such as magazines, treatises, law firm white papers and law reviews and make public remarks in what is collectively called “public commentary,” in online informational videos such as webinars and podcasts.

The Opinion states that lawyers who communicate about legal topics in public commentary must comply with the Model Rules of Professional Conduct. A lawyer  must maintain confidentiality of information relating to the representation of the client, unless the client has given informed consent, the disclosure is impliedly authorized to carry out the representation, or the disclosure is permitted by Rule 1.6(b).

Further, Rule 1.6, “applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.” Thus, the scope of protection afforded by Rule 1.6 is far broader than attorney-client privileged information.

The Opinion notes that information about a client’s representation contained in a court’s order, although contained in a public document or record, is not exempt from the lawyer’s duty of confidentiality under Model Rule 1.6. The duty of confidentiality extends generally 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.