Many of the lawyers I have talked to about online marketing, blogging, and social media have worried that posting information online could cross an ethical boundary and cause professional responsibility problems, especially where attorney-client confidentiality is involved. Now the American Bar Association has weighed in to set the record straight.
In a formal ethics opinion issued March 5, 2018, the ABA’s Standing Committee on Ethics and Professional Responsibility rendered its position on law blogs and attorney-client confidentiality. The opinion doesn’t contain any real surprises to those familiar with the Model Rules of Professional Responsibility, but it does give clear guidance to those who may still be on the fence about the ethics surrounding lawyers who blog or engage in public commentary online.
Do the Model Rules Apply to Your Law Firm?
Lawyers using the ABA’s opinion to justify their blogging decisions should be careful. After all, the decision interprets the Model Rules of Professional Responsibility. And they are just that: models. While many state bars have adopted rules similar to, and based off of the model rules, legal linguists know that even one word change or different comma placement can affect how a rule or statute is interpreted by the courts.
Consider this your warning: before you take the ABA at its word, make sure your state’s rules about client confidentiality mirror the model rules. That said, the ABA’s opinion references opinions of bar associations across the country in accord and contrast to its own decision, so you can expect it to be generally applicable as long as your state’s rules are similar.
So Does the ABA Let You Blog or Not?
The ABA opinion doesn’t even question that some lawyers will blog. The opinion begins with the assumption that “Lawyers comment on legal topics in various formats” including blogs, listservs, online articles, and social media. They also “make public remarks in online informational videos such as webinars and podcasts” which the ABA calls “public commentary”. So just like when it comes to advertising more generally, it’s not whether you are allowed to blog, but what you can say in your posts that count.
Client Confidentiality Controls What Can Get Posted Online
The bottom line in the ABA opinion is that lawyers are ethically prohibited from posting anything online that would violate client confidentiality under Model Rule 1.6(a):
“A lawyer shall not reveal 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 is permitted by paragraph (b).”
(Paragraph (b) doesn’t apply to public commentary, in case you are curious.) According to the opinion, the confidentiality rule “applies to all information relating to representation, whatever its source.” So it’s not just about telling client secrets. Even client identity is protected. The inclusion of the information in a court order or public record isn’t enough to release a lawyer to blog about it. Even if others have access to the information lawyers can’t disclose it.
What About Hypotheticals? They’re Safe Right?
This blog has recommended using hypothetical situations to avoid disclosing confidential client information online. But the ABA says that even a hypothetical can cause ethical problems if “there is a reasonable likelihood that a third party may ascertain the identity or situation of the client from the facts set forth in the hypothetical.” It recommended that when using a hypothetical in public commentary, it should be “constructed so that there is no such likelihood.”
But what does that mean? We’ve all been asked a “hypothetical” question by someone digging for free legal advice. By the time the question is over, we know who really has the problem, and what is going on. That’s what the ABA is warning against. It isn’t enough to scrub client names from your hypothetical. Blend facts between cases or abstract the issue enough so that even if a reader knew who your clients were, the reader wouldn’t be able to tell you were talking about them.
No Client Stories? Not so fast.
When you have had a big success, you certainly want to talk about it. Under the ABA’s ruling, as long as the party is a client, your lips must remain sealed. That is, unless you get client consent. The ABA recommends getting written permission to write about you client’s story and then sending them a draft of the blog before it goes live.
If you aren’t planning on talking about any particular case, but you want to be certain you have client consent to cover those maybe-too-specific hypotheticals, you may also want to include something in your fee agreement. Depending, again, on the particular language of your state’s professional responsibility rules, it could look something like this:
This firm uses online marketing including a blog and social media. You have the right to confidentiality about all details related to your case. By signing this Retainer Agreement, you acknowledge that the firm may make general references to you and your case in ways that are not readily identifiable to the general public. Should the firm wish to go beyond this general waiver, you will be entitled to grant or refuse informed consent to each instance and to review any public commentary prior to publication.
Lawyers are naturally cautious when it comes to professional responsibility rules. But the new ABA opinion about law blogs and attorney-client confidentiality need not scare you away from posting. Informational blogs, hypotheticals, and even client case studies are all available to you, as long as you follow the rules about confidentiality and consent.
Lisa Schmidt is a writer for Legal Linguist in Ferndale, Michigan. She writes blogs and web content for lawyers and small businesses. If you need help creating ethical blog content for your legal website, contact Legal Linguist to schedule a meeting.