Client Consent Is Key

• Author: David L. Hudson Jr.
• Pages: 24-25

Client Consent Is Key

Lawyers have an enhanced duty of confi dentiality when engaging

in public commentar y

By David L. Hudson Jr.

Lawyers should be mi ndful of the duty of confi dentiality

when they engage in public commentar y, including blogs,

website postings, t weets, informational v ideos, webinars,

podcasts and ot her more traditional formats, acc ording

to a formal ethic s opinion from the ABA Standing

Committee on Eth ics and Professional Responsibilit y

released in March .

Formal Opinion 480 explai ns that lawyers communicat-

ing about legal topics in public commenta ry must comply

with the ABA Model Rule s of Professional Conduct, in-

cluding Rule 1.6(a), which says: “A lawyer shall not reveal

information relating t o the representation of a client

unless the client give s informed consent, the

disclosure is implied ly authorized in order to

carry out the re presentation, or the disclosure

is permitted by pa ragraph (b).”

WHEN THE DUTY APPLIES

This duty of confi dentiality i s broad

and includes all inform ation related to

the representation, not just what ’s learned

directly fr om the client. The reach of this

rule is much broader than t he attorney-client

privilege or the work product doc trine.

“The committe e acknowledges that new

technologies ‘have a ltered how lawyers com-

municate’ and ‘may rai se unexpected practica l

questions,’ ” says Ellen Murphy, who teaches

professional responsibil ity at the Wake Forest

University School of Law. “It is these practic al

questions on which guida nce is needed.”

The opinion places signifi canc e on the fact

that the duty of confi dentialit y applies even to

information “contained i n a public document

or record.” The opinion explains tha t “the

duty of confi dentiality ex tends generally

to information relate d to a representation

whatever its source a nd without regard to

the fact that others m ay be aware of or have

access to such k nowledge.”

“The salient point is that w hen a lawyer par-

ticipates in public commentar y that includes

client information, if the law yer has

not secured the client’s informed

consent or the disclosure

is not otherwise i mpliedly

authorized to ca rry out the

representation, then the

lawyer violates Ru le 1.6(a),”

the opinion conti nues.

Some legal expert s agree with the opinion’s emphasis on

describing the broad nat ure of a lawyer’s duty to protect

confi dential client information.

“An attorney’s duty of confi dentiality t o his client is a

foundational component of the attor ney-client relationship,”

says Kelly Rain s Jesson, an attorney in Charlotte , North

Carolina, who c o-authored a Campbell Law Review ar ticle

cited in the ABA et hics opinion.

“As the opinion advises, there is no doubt th at attorneys

need to be cautious about v iolating Rule 1.6 on social media

when posting about a case w ithout client consent, no matter

the nature of or source of the in formation,” Jesson adds.

“The lawyer’s overrid ing obligation is to say

and do nothing to harm t he client’s interests,

defi ned broadly to include the client’s case

outcome, the client’s reputation-based c on-

cerns, and the client’s desire for pr ivacy,” says

ethics exper t Lara Bazelon, who teaches at

the University of San Franc isco School of Law.

Bazelon says this duty of con fi dentialit y is

important enough that , as the opinion says, it

should apply even to client information gle aned

from a public record or court doc ument.

“On the surface , it sounds nonsensical—why

should a lawyer be sanct ioned for talking about

information that ever yone knows already?”

Bazelon says. “But a lawyer isn’t an object ive

public commentator or an ordina ry member

of the public. A lawyer is her client’s advoc ate,

and in that role she must elevate the cl ient’s

interests above a ll else. If the client does not

want the lawyer to t alk about the case, even

information that is a lready in the public

domain, she should refrai n from doing so.”

However, Murphy thinks the ABA’s rule on

confi dential information is too broad. “ While

this opinion accur ately analyzes the current

Model Rules, I fi nd the rules much too broa d

in defi ning confi dent ial client information,” she

says. “The ABA ha s been clear that information

related to the client represent ation, even if in

the public record, is confi dential client in for-

mation and cannot be reve aled absent consent

or some other exception. This is an overly

broad prohibit ion.”

FREE SPEECH CONSIDERATIONS

The opinion acknowledges what

it terms “First A mendment con-

siderations” but emphasizes that

“THE ABA HAS BEEN

CLEAR THAT INFOR-

MATI ON REL ATED

TO THE CLIENT

REPRESENTATION,

EVEN IF IN THE

PUBLIC RECORD,

IS CONFIDENTIAL

CLIENT INFORMATION.”

— ELLEN MURPHY

PHOTOGRAPH COURTESY OF WAKE FOREST UNIVERSITY SCHOOL OF LAW

24 || ABA JOURNAL MAY 2018

Ethics

Practice