The ABA’s Standing Committee on Ethics and Professional Responsibility issued the following opinion regarding the confidentiality obligations of lawyers posting to listservs:

“Rule 1.6 prohibits a lawyer from posting questions or comments relating to a representation to a listserv, even in hypothetical or abstract form, without the client’s informed consent if there is a reasonable likelihood that the lawyer’s questions or comments will disclose information relating to the representation that would allow a reader then or later to infer the identity of the lawyer’s client or the situation involved.”

In Footnote 9, the Committee notes that: “Lawyers who anticipate using listservs for the benefit of the representation may seek to obtain the client’s informed consent at the outset of the representation, such as by explaining the lawyer’s intention and memorializing the client’s advance consent in the lawyer’s engagement agreement.”  At the same time, however: “The lawyer’s initial explanation must be sufficiently detailed to inform the client of the material risks involved,” and, “it may not always be possible to provide sufficient detail until considering an actual post.”

The Committee further makes clear that: “A lawyer may participate in listserv discussions such as those related to legal news, recent decisions, or changes in the law, without a client’s informed consent if the lawyer’s contributions will not disclose, or be reasonably likely to lead to the disclosure of, information relating to a client representation.”

ABA Formal Opinion No. 511 (May 8, 2024).

While I generally tend to objectively summarize and/or quote from these opinions and decisions without editorializing, I do disagree with this view, for whatever it’s worth.  (i) I think the notion that publicly available information, (particularly information that is not sensitive, or embarrassing, or otherwise adverse to the client), is nevertheless “confidential” is somewhat specious.  (ii) This opinion is reflective of a general and frequent bias in favor of large, corporate, defense interests and firms, and against smaller, plaintiff, and/or general practice interests and firms.  And (iii) for practical reasons, policy reasons, and based on the actual text of the opinion, I think it is somewhat unlikely that Disciplinary Counsel, a Bar Association, or a Court would actually prosecute or sanction a plaintiff lawyer who uses a trial lawyer related listserv in the typical way.

A. The policies behind the First Amendment and Professional Rule 5.6(b) support a lawyers’ ability to promote and utilize his or her information and experience – and, more importantly, the entitlement of other present, future and would-be clients of the lawyer, and/or the public at large, to such information and experience. To be sure, there are many cases and other authorities which support the notion that, because the practice of law is not a right, but a privilege, a lawyer’s free speech rights may be curtailed in a reasonable way. At the same time, however, Bar Associations, Disciplinary Counsel, and Courts have generally recognized the commercial speech interests of attorneys, as well as certain exceptions and situations where the duty to a client or former client is superseded by a higher duty to the public, the profession, or the Court.  And there is often a reluctance, (at least based on my impression), of Bar Associations or Disciplinary Counsel to press matters where the First Amendment is going to be an issue.

B. Is publicly available information really “confidential”? Where a lawyer’s communications might promote the dissemination of information relating to a client that is personally or commercially sensitive, embarrassing, or otherwise adverse, it makes sense to require the attorney to get informed consent. But that, (at least in my opinion), stems more from the lawyer’s duty of loyalty than the duty of confidentiality, at least where the information is already publicly available.  To be sure, Comment [3] to Rule 1.6, Formal Opinion No. 433, Formal Opinion No. 496, and now Formal Opinion No. 511, all stand for the proposition that the duty of confidentiality under Rule 1.6 is broader than the attorney-client privilege. As a practical matter, however, Courts are generally called upon to decide privilege issues, and would seem unlikely to extend “confidentiality” to information that has been formally disclosed to (or otherwise obtained by) an opposing party and is available in the public record.  Which seems particularly true where the client in question is not even identified.

C. Where the client in question is not identified, the text of the Rule and the Formal Opinion itself refer to situations where the communication “could reasonably lead” to the discovery of confidential information. Comment [4] to Rule 1.6, in this regard, makes it clear that: “A lawyer’s use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved.” And ABA Formal Opinion No. 411 recognized that “a lawyer is impliedly authorized to disclose information relating to the representation to another lawyer, outside the inquiring lawyer’s firm and without the client’s informed consent, to obtain advice about a matter when the lawyer reasonably believes the disclosure will further the representation.”  The Standing Committee’s conclusion that a lawyer is not generally “impliedly authorized to reveal similar information relating to the representation of a client to a wider group of lawyers by posting an inquiry or comment on a listserv” seems oblivious to the application of what such a communication would reasonably lead to in the context of an anonymous plaintiff.

D. Perhaps, where the client is an American auto manufacturer, or a European pharmaceutical company, or a Louisiana hospital system, an interested member of the public or the bar could reasonably identify who that client is – and might have an incentive for doing so. That company may be involved in other litigation, (present and/or future), in which the information might be helpful; and/or the information might be relevant to a host of business, public relations, regulatory, or other issues of interest to stockholders, the Government, or the public at large.  Where, however, the litigant in question is just a John or Jane Doe – even assuming that someone could do little detective work and figure out the client’s actual identity – why would they?  Is that really “reasonably” likely?  Absent a political figure, public figure, or celebrity, it seems very unlikely that anyone would be incentivized to spend the time, money, or effort.  What is important to the members of the listserv – or the attendees of a CLE presentation, or the readers of a bar association publication – is to learn from the experience of the lawyer in question based on the general situation.  Not to identify, or contact, or disseminate information about, or otherwise harass, the individual John or Jane Doe in question.  The Standing Committee focuses on the notion that there is a “reasonable likelihood” that the reader could ascertain the identity of the client or the situation involved.  But the real question is – or at least should be – whether there is a “reasonable likelihood” that a reader will or would.

E. Not only is the situation asymmetrical with respect to the client, but it is also asymmetrical with respect to the lawyer.  The Formal Opinion makes it clear that an attorney may generally disclose information relating to a client to other members of the same firm.  Corporate and defense lawyers who practice in firms of 100, or 200, or 500 lawyers, or more, have a wealth of information and experience that they can learn from, just within their own firm.  (Just like a company like State Farm, or J&J, has a wealth of litigation-related information and experience to draw upon.)  A solo practitioner or other lawyer practicing in a small or even midsize plaintiff or general practice firm, by contrast, needs services like listservs to (a) level the playing field, and (b) obtain and provide the mentorship of other lawyers who can help younger lawyers develop and contribute to the overall enhancement and advancement of the profession.