The following is a guest post from BBA Ethics Committee Co-chair Paul Tremblay and Ethics Comittee Member Jeffrey Woolf:
A recent ethics opinion from the American Bar Association (ABA) offers lawyers guidance about the care needed when using social media to discuss their work. That opinion is somewhat less relevant to Massachusetts lawyers than to most lawyers in the country, because of the different language of the confidentiality provision in the Commonwealth. But lawyers who are admitted or practice temporarily in other states that do follow the ABA’s Model Rule ought to play close attention to the ABA’s guidance.
In Formal Opinion 480 (March 6, 2018), the ABA’s Standing Committee on Ethics and Professional Responsibility concluded that “[l]awyers 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.” Model Rule 1.6(a) states, “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).” The exceptions covered by 1.6(b) include prevention of death or substantial bodily harm, preventing certain frauds, and the like, and have little or no bearing on activities such as blogging or using social media.
The thrust of the ABA opinion is that lawyers may not disclose information about clients, including the very fact of representation, unless an exception exists within Rule 1.6. The fact that a lawyer represents a client is “information related to the representation,” and therefore may not be revealed without the informed consent of the client. That the representation may be known to others through public documents, such as court filings, does not make a difference. Rule 1.6, the ABA reminds us, does not have an exception of information that is generally known.
The result is different in Massachusetts. Massachusetts’s Rule 1.6(a) states (and the italics are ours), “A lawyer shall not reveal confidential 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).” Rule 1.6 in Massachusetts therefore covers much less information than the Model Rule. The Comment to Rule 1.6 defines “confidential” as follows: “‘Confidential information’ consists of information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the lawyer has agreed to keep confidential.” In many instances, the fact of representation or the information contained in active court records will not be “confidential” by that definition. Massachusetts explicates its departure from the Model Rule in comments [5A] and [5B] and somewhat closes the gap between the two rules. However, these comments do not imply that the lawyer’s representation of the client, by itself, is confidential, as does the ABA Formal Opinion.
The difference between the Model Rule and the Massachusetts provision suggests at least these two pieces of advice for Massachusetts lawyers. First, even if the facts of a client’s matter do not qualify as “confidential” under our Rule 1.6, a lawyer’s fiduciary duty to her client, along with sound business judgment, will lead her to refrain from discussing the client’s facts publicly without the informed consent of the client. And second, Massachusetts lawyers who are admitted in other states, or who practice temporarily in other states, need to be mindful of the stricter Model Rule provision, which likely will be in place in the other states. Most states have adopted the language of Model Rule 1.6(a). In particular, a multi-state lawyer or law firm should not blog or otherwise mention that it represented a particular client without the client’s permission, even if that representation is a matter of public knowledge. Since most states have advertising rules that are more restrictive than Massachusetts, any web page, blog or other material should conform to both the new ABA Formal Opinion as well as the most restrictive advertising requirements in which the lawyer or law firm practices.