CBA ETHICS COMMITTEE
Adopted April 3, 2017; Revised November 17, 2018
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. .
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 materials 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.
The opinion is limited to ethical considerations when a lawyer posts online or otherwise shares specific documents or other materials (such as videos) related to the lawyer’s representation of a client; it does not address potential limitations on a lawyer’s use or disclosure (whether online or otherwise) of other information the lawyer learned during the course of representing former clients. For example, during conversations with a current or former client, a lawyer might have learned specific factual information related to the representation. While the Rules would generally prohibit the lawyer from disclosing that information, whether online or otherwise, see Colo. RPC 1.6(a), 1.9(c)(2), this opinion does not address that circumstance. Or, a lawyer might have accumulated knowledge on an issue, such as how best to negotiate with a governmental agency, based on a history of representing former clients in negotiations with that agency. This opinion does not address the limits, if any, on a lawyer’s use and disclosure of that type of information, whether in online posts or otherwise.
Lawyer’s Duty to Maintain Client Confidences
A. A Lawyer’s Broad Duty to Maintain the Confidentiality of Materials Relating to the Representation of Current Clients
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...