In a recent advisory opinion, the State Bar of California Standing Committee on Professional Responsibility and Conduct (“Committee”) reaffirmed a relatively conventional view on attorneys’ duty of confidentiality toward their clients. Following up on a proposed advisory opinion from 2015, the Committee stated that lawyers may not disclose information, particularly embarrassing information, learned in the course of representing a client, even if that information is otherwise publicly available. This conclusion does not represent a departure from past authority, but rather reiterates that regardless of its source, information attorneys obtain while working for a client must remain confidential.
Model Rule 1.6: The Duty of Confidentiality
As discussed in an earlier post, lawyers must use caution when discussing client matters on their websites and blogs, as they would in any other forum. What this often means in practical terms is that attorneys must obtain a client’s informed consent before sharing information about them on the internet. They must also be sure that any attempts to mask the identity of clients they are discussing online are effective, because even disclosures that are not themselves confidential, but that could reasonably lead to the discovery of confidential information, can be considered a breach.
The American Bar Association’s Model Rules of Professional Conduct (“Model Rules”), which most states have adopted to a large degree, provide a basis for this reasoning. Comment 3 to Model Rule 1.6, which addresses the duty of confidentiality, provides that the confidentiality rule applies to “all information relating to the representation, whatever its source.”
The California Bar referenced this rule, among other authority, in its recent opinion. Providing a series of hypothetical scenarios in which an attorney defended a hedge fund manager in an investor lawsuit, the Committee discussed the ways in which the lawyer’s duty of confidentiality would apply (or not) in varying situations. For example, information regarding past indiscretions the client had made with investor funds (unrelated to the suit in which the attorney represented him) was considered confidential even though the lawyer had received the information from both the client and an external, publicly available source. Particularly because it was information that could be considered embarrassing or detrimental to the client, it was a secret that the attorney was required to maintain in confidence.
The Committee also addressed an attorney’s duty of confidentiality to former clients, reflected in Model Rule 1.9(c) and its state analogs. It found that the lawyer in this case would have violated his duty of confidentiality by writing a letter to a newspaper in response to an article it had published about the hedge fund manager after the representation had concluded. In the lawyer’s hypothetical letter he stated that he had secured a settlement for his client that was “only” seven figures. The Committee explained that even though the settlement terms in this case were publicly available, the lawyer’s disclosure of information about the settlement (and by extension, the existence of the lawsuit) was a breach of confidence. Moreover, by inferring that a seven-figure settlement was a good one, the attorney’s comments could be interpreted as attributing bad or potentially embarrassing acts to the client. The Committee also pointed out that the attorney only had knowledge of the lawsuit that he had worked on because he had learned of it from the client in the first place, thus compounding his responsibility to keep the related details, particularly those that could be harmful to the client if disclosed, confidential.
Finally, the Committee offered a hypothetical in which, several years later, the same hedge fund manager was arrested for driving under the influence. In response, the lawyer stated on Facebook that “drinking and driving [was] irresponsible.” The Committee found that this statement did not constitute a violation of the attorney’s duty of confidentiality because the DUI arrest did not relate in any way to the prior representation, and the attorney had not learned any information about it as a result of the representation. Thus, while the lawyer’s comment in this case may not have demonstrated good judgment, it was not an ethical transgression.
Confidentiality in Other States
The California opinion is consistent not only with the Model Rules referenced above, but also with authority from other states. For example, many jurisdictions such as Ohio (comment 3 to Rule 1.6) and Idaho (comment 3 to Rule 1.6) have directly adopted the wording used in the Model Rule, stating that the source of information learned in the course of a representation is immaterial, such that even facts gleaned or available from public sources can still be considered confidential. Further, and as referenced in the Committee’s opinion, courts in several jurisdictions including the District of Columbia and West Virginia have also concluded that the fact that client information is available from a public source or known by others does not mean it is not confidential when a lawyer learns it in the course of a representation.
As previously discussed on this blog, some limited authority exists for the proposition that First Amendment protections can outweigh an attorney’s duty of confidentiality under these circumstances. Most notably, in a 2013 ruling the Virginia Supreme Court concluded that an attorney’s dissemination on his blog of publicly available information regarding closed cases he had worked on did not violate his duty of confidentiality toward his clients, but was in fact constitutionally protected. However, this logic seems to represent an exception to the general rule rather than the norm, and attorneys should carefully check the rules in their state before relying on it.
There are a few takeaways here that can be helpful for attorneys seeking to grow their online presence by advertising past case results on their websites and blogs. Primarily, to the extent that the California opinion reflects generally accepted standards regarding confidentiality, it demonstrates that lawyers cannot rely upon the fact that information they may wish to market in relation to client matters is available from a public source. In other words, if it was information they learned in the course of representing a client, especially if disclosure would be embarrassing or detrimental to the client, it must remain confidential. Further, this logic applies to both current and former clients. Nonetheless, as referenced above, it may be possible to share such information if the attorney obtains the client’s informed consent first. In the end, and as always, the safest course is to carefully check your state’s current legal ethics authority before disclosing information related to a client matter on the internet or elsewhere.