A Law Blogger’s Duty to Maintain Client Confidences
There’s often a wide gap between what we can do and what we should do. The First Amendment is a constitutional pillar of our free and open society, but it also supplies a dangerous invitation to run our mouths on topics that are better kept to ourselves. If you doubt me, try invoking the First Amendment the next time you offend your spouse.
Like marriage, the practice of law is an endeavor where engaging in behavior tolerated by the First Amendment can be dangerous, even unethical. You don’t have to be Aristotle to see the tension between “free speech” and “client confidentiality.”
So when I read the following in the American Bar Association’s March 6 ethics opinion, Confidentiality Obligations for Lawyer Blogging and Other Public Commentary (Formal Opinion 480), it seemed like good advice to me:
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.
The ABA continued:
A lawyer must maintain the confidentiality of information relating to the representation of a client, unless that client has given informed consent to the disclosure, the disclosure is impliedly authorized to carry out the representation, or the disclosure is permitted by Rule 1.6(b).
Could there be any blog post so important that it is worth damaging a relationship with a client?
I didn’t think so, but there are some who see the matter differently. Blogger and First Amendment expert Robert Ambrogi, writes in In New Ethics Ruling On Blogging, ABA Opines Like It’s 1999 that “it makes no sense to say that a lawyer cannot talk about that which is already on the public record” without first obtaining the client’s consent.
Ambrogi believes that the ABA opinion “goes too far” in restricting lawyers’ ability to engage in public discourse about legal proceedings, and he cites several cases supporting the view that the ABA may have overstepped here.
Perhaps that’s true, from a strictly First Amendment standpoint. But there are other factors to weigh here, which the ABA opinion properly points out.
The ‘Public Commentary’ Side of Things
I can’t speak knowledgeably about what other law bloggers are up to. But I can share information about the “public commentary” aspect of the ABA opinion.
When I worked as a legal journalist I frequently sought for-publication insights from attorneys who were subject-matter experts on areas of law covered by my articles. These attorneys came to my attention for any number of reasons: they were listed as counsel in court records; they spoke at a conference; they were quoted in somebody else’s article; they were listed as policy counsel for an interest group or association; or they blogged about the topic.
Almost without exception, these attorneys were willing to talk at length about the law but not at all about their clients. It was a line rarely crossed.
Typical comments I received:
“Who told you Smith Corp. is my client? I didn’t say that.”
“Before we continue, I want to be clear that we are not discussing any of my clients and nothing I say has anything to do with my clients.”
“I’m not authorized to talk about this case without getting my client’s permission. I’ll call you back if we can do this.”
“Wish I could help. But I can’t.”
Far from being mired in the primordial, pre-digital ooze, the ABA is doing attorneys a favor by urging them to put client confidences and client welfare ahread of practice marketing considerations. By insisting that attorneys zealously guard client confidences and consult clients in advance, even if the same information is contained in a public record, the ABA is mandating no more than what is already a widespread best practice among law firms.
To any attorney who stumbles upon this post, I’d say this: If you think that other attorneys are exercising their arguable First Amendment rights to talk about cases they are involved in, you’re mistaken.