Learn about some of the potential ethical risks associated with attorneys discussing client matters or information on their website or blog. Among these risks are violating the duty of confidentiality; violating rules requiring explicit client consent before you share case details in advertising; and violating rules regarding testimonials by, or actor depictions of, clients. The information contained in this blog post does not constitute legal advice; you should refer to the rules of your jurisdiction to ensure your marketing is in compliance.
One of the first things you may want to highlight for prospective clients who are considering engaging your legal services is your record of successful outcomes in past cases. Publishing this kind of information can be very helpful in marketing your firm on the Internet. However, it is critical to comply with all applicable rules of professional responsibility when doing so. Though you should always confirm any state bar rules applicable to your jurisdiction before disclosing any client information, reading over the tips below can help you identify some of the potential ethical risks of posting information online about cases you have worked on.
1. The Duty of Confidentiality Applies to Internet Disclosures
While it may seem obvious, it bears emphasizing that your professional duty of confidentiality to current and former clients governs any information relating to their representation that you choose to divulge online. What this means in practical terms is that, just as in many other (non-Internet) contexts, you are likely required to obtain informed consent from any client whose case you discuss on your website or blog.
The American Bar Association’s (ABA) Model Rules of Professional Conduct (“Model Rules”), which have been adopted in full or in part in most states, address these general confidentiality obligations in Rules 1.6 and 1.9. The ABA applied these standards to online disclosures in Formal Opinion 10-457, explaining that lawyers must secure informed consent before posting information about clients on the Internet.
State disciplinary actions against attorneys have begun to reflect this reasoning as well. For example, the Georgia Supreme Court rejected a proposal for voluntary reprimand from an attorney who, in response to negative online reviews regarding her legal services, posted confidential information obtained in the course of a representation but neglected to obtain client consent. Similarly, the Wisconsin Supreme Court mandated a 60-day suspension, reciprocal to identical discipline imposed upon the same attorney by the Illinois Supreme Court, for conduct including discussing confidential case information on her blog without client consent.
The Model Rules (and many of their state bar analogs) provide that “informed” consent means agreement by the client after you have communicated sufficient information about the risks of and feasible alternatives to the course of action you’re proposing. And while informed consent does not always mean written consent, it may be wise to secure permission in writing before making any online disclosures about your work for a particular client.
2. Some States Explicitly Require Client Consent Before You Share Case Information in Advertising Materials
In keeping with the rules discussed above, some state bar associations have articulated specific requirements for client consent to the release of case information in attorney advertising materials. Since law firm websites (as well as many legal blogs, as discussed in this previous post) are generally considered to be legal advertising, this extends the informed consent requirement to online disclosures in the particular context of legal marketing, in addition to the general requirement that exists under the more general duty of confidentiality. For example, if lawyers in New York (Rule 7.1(b)(2)) or North Carolina (comment 2 to Rule 7.2) wish to list on their website the name of a client they regularly represent, they must obtain informed consent. Be sure to check your state’s rules of professional conduct to confirm whether any rules of this nature may apply to your website or blog.
3. Indirect Discussion of Client Matters Can Lead to an Ethical Breach
Even if you take steps to obscure case details or conceal the identity of a client in an online post, any information you publish on the Internet (or disclose in any other forum for that matter) can potentially be enough to break a confidence. As explained in comment 4 to Model Rule 1.6, if the information you share could reasonably lead to the discovery of confidential information by a third party, such a disclosure can constitute a breach of your ethical duties. As recognized by states such as Ohio (comment 3 to Rule 1.6) and Idaho (comment 3 to Rule 1.6), this applies to any information relating to the representation, regardless of its source.
It is worth noting that a recent ruling from the Virginia Supreme Court suggests that First Amendment protections may outweigh an attorney’s duty to withhold non-confidential client information in the context of blogging about closed cases that are already a matter of public record. However, this conclusion seems to be somewhat of an outlier in comparison with the opinions discussed above. At least until more authority becomes available on this evolving issue of law, the safest course is likely to err on the side of caution and refrain from publishing case information that could be construed as confidential.
4. Many States Regulate Testimonials by, or Actor Depictions of, Clients
Finally, even if instead of posting information about your clients online on their behalf, you are seeking testimonials directly from the clients themselves or relying on actor portrayals of clients in which no confidential information could possibly be disclosed, proceed with caution. As discussed in this previous post, many states require that disclaimers accompany client testimonials for the purpose of conveying that results obtained under a given set of circumstances may not be achievable in all situations. In other places, whether the matter at issue is still pending can impact your ability to include information about that case. Further, some jurisdictions mandate disclaimers regarding, or outright prohibit the use of, actors to depict clients who have used an attorney’s legal services. Be sure to check your state bar rules to confirm which of these standards may regulate your use of client testimonials.
In sum, and as discussed above, it is critical to diligently track the current rules of professional responsibility in the state(s) in which you practice. Including all required disclaimers, and obtaining consent from all necessary parties, can help you ensure that all of your marketing materials comply with your ethical obligations and promote your firm in a positive and professional light.
Disclaimer: The information in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from Justia Inc. or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this Post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.