Formal Opinion No. 130, 0717 COBJ, Vol. 46 No. 7 Pg. 66
APPROVED APRIL 3, 2017
CBA ETHICS COMMITTEE
Online Posting and Sharing of Materials Related to the Representation of a Client
I. Introduction and Scope
The Internet has made sharing many forms of information easier. It is easy, for example, for lawyers to post video clips from depositions, share responses to common motions or deposition transcripts of often-used experts, or publish recent court orders. The practice of sharing litigation materials, including deposition transcripts, briefs, and discovery responses, allows lawyers to assist one another in representing their respective clients. A comment to Rule 3.6 of the Colorado Rules of Professional Conduct (Colo. RPC or the Rules) reminds lawyers that “there are vital social interests served by the free dissemination of information about events having legal consequences and about legal proceedings themselves.” Colo. RPC 3.6, cmt. [3].
Despite the strong interest in allowing the free flow of information, including through various electronic media, lawyers must be mindful of and adhere to various provisions of the Rules when sharing or posting information online. Lawyers must be particularly vigilant about client confidentiality when revealing information relating to the representation of a client. In addition, lawyers must be mindful of their duty of candor and other obligations flowing from court orders and rules. Although some of the Rules do not apply when a lawyer is not representing a client, most of the Rules relevant to posting or sharing materials obtained or generated during representation apply generally to a lawyer regardless of whether the lawyer posts or shares the materials as part of the representation of a client. These rules also generally apply even after the representation has concluded.
This opinion focuses on posting or sharing materials electronically, through various forms of online media, but the conclusions in this opinion apply to dissemination in any form. For instance, the principles underlying this opinion would apply to a lawyer showing a video deposition to a live audience or distributing written materials at a CLE presentation.
II. Lawyer’s Duty to Maintain Client Confidences
A. Confidential Client Information
A deposition transcript in which an expert admits to lacking certain qualifications might be helpful for other lawyers to review before preparing a response to a summary judgment motion or preparing to examine the same expert in a deposition or at trial. A video of a deposition in which a government official admits to public corruption might be valuable for the public to watch. When a lawyer obtains these materials in connection with representing a client, however, Colo. RPC 1.6 is implicated.
Colo. RPC 1.6(a) prohibits a lawyer from revealing “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” meets one of a few specific and narrowly drafted exceptions in Colo. RPC 1.6(b). There is no exception for revealing information for educational purposes, to assist another lawyer, or because the information is “newsworthy.”
Similarly, Colo. RPC 1.8(b) provides “[a] lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules.” Comment 5 to Rule 1.8 explains this prohibition applies even when “information is used to benefit either the lawyer or a third person, such as another client or business associate of the lawyer.” The Comment clarifies, however, that Rule 1.8(b) “does not prohibit uses that do not disadvantage the client.”
The scope of what is confidential under Rule 1.6 is much broader than the evidentiary attorney–client privilege. “The confidentiality rule . . . applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.” Colo. RPC 1.6, cmt. [3]. The Colorado Supreme Court broadly interprets “client information.” People v. Hohertz, 102 P.3d 1019, 1022 (Colo. 2004).
Information relating to the representation of a client often exists in public records. Because a client may not understand that many records, like court flings, are available to the public, a lawyer should advise the client that certain tasks necessary to the representation of the client will result in information about the client, even sensitive information, becoming public.
Information in public records that relates to the representation of a current client is “information related to the representation of a client” that is covered by the Rules. There is no exception for disclosing information in public records. In re Anonymous, 654 N.E.2d 1128, 1129 (Ind. 1995) (disclosure of client information that “was readily available from...
To continue reading
Request your trial