The American Bar Association Standing Committee on Ethics and Professional Responsibility has issued Formal Opinion 480 explaining the limitations the Model Rules of Professional Conduct place on lawyers who blog or engage in other social commentary related to a representation.
Under Model Rule 1.6(a) a lawyer has a duty of confidentiality.
Supporting language to the model rule, known as a Comment, emphasizes that a fundamental principle of the legal profession is that a lawyer must not reveal any information relating to the representation without the informed consent of the client.
The opinion notes that unless one of the exceptions to Model Rule 1.6(a) applies to a situation, the lawyer is barred for commenting publicly about the representation.
With more lawyers blogging and offering social commentary, Formal Opinion 480 is intended to provide guidance on the parameters of
such activity.
It also serves as guidance to state licensing agencies to help interpret their own rules of professional conduct.
The opinion adds that the ethical rules of many jurisdictions establish confidentiality rules even before formal representation begins and well beyond the end of the professional relationship.
The opinion warns lawyers against using hypotheticals in blogging and social commentary when there is a “reasonable likelihood” that a third party might ascertain the identify or situation of the client from the facts in the hypothetical.
“The salient point is that when a lawyer participates in public commentary that includes client information, if the lawyer has not secured the client’s informed consent or the disclosure is not otherwise impliedly authorized to carry out the representation, then the lawyer violates Rule 1.6(a),” the opinion said.
The ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions to guide lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior.
Formal Opinion 480 and other ABA ethics opinions are available on the ABA Center for Professional Responsibility website.
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