Legal Ethics for New Lawyers: Client Confidentiality and Listservs: How Much Can You Say to Obtain Professional Assistance?
The American Bar Association (ABA) recently published an ethics opinion addressing the use of listservs to seek assistance regarding a legal issue on behalf of a client.i While some have pondered why the ABA would choose to address this antiquated modality in 2024, the rationale behind the opinion is nonetheless useful when assessing the application of Rule 1.6 (client confidentiality) to more current modes and methods of communication for seeking assistance on behalf of a client. (CA Rules of Professional Conduct, Rule 1.6.)
The lawyer’s duty of confidentiality, as codified in Business and Profession Code 6068(e)(1), is paramount to the relationship between the attorney and client. Rule 1.6, comment 2, states, “The principle of lawyer-client confidentiality applies to information a lawyer acquires by virtue of the representation, whatever its source, and encompasses matters communicated in confidence by the client, and therefore protected by the lawyer-client privilege, matter protected by the work-product doctrine, and matter protected under ethical standards of confidentiality, all as established in law, rule, and policy.” To protect against potential Rule 1.6 violations, an attorney can obtain informed consent from the client before revealing confidential information.
“Informed consent” requires that the attorney communicates and explains the relevant circumstances, the material risks, and any actual and reasonably foreseeable adverse consequences of the proposed course of conduct. (CA Rules of Professional Conduct, Rule 1.0.1(e).) Even without this express informed consent, the ABA opines that when a lawyer seeks legal assistance in a direct lawyer-to-lawyer situation, the lawyer does so with the implicit authorization from the client as the communication furthers the representation. (ABA Formal Opinion 98-411 (1998).)
ABA Formal Opinion 511Rii, distinguishes between a lawyer seeking legal assistance from a known acquaintance from that of a listserv. Both allow the lawyer to provide an anonymous client’s information, but there is an understanding with an acquaintance that there is no conflict of interest, and the consulting lawyer will keep the information provided in confidence. (ABA Formal Opinion 98-411 (1998).)
On a listserv, there is no mutual understanding of confidentiality or that every reader is conflict-free. (ABA Formal Opinion 511R.) The opinion extends a potential Rule 1.6 violation to include instances when the question posed could reasonably lead to the discovery of representation-related information because there is a “reasonable likelihood” that a listserv reader will be able to ascertain the identity of the client or the situation involved. Id.
While ABA Formal Opinion 511R specifically addresses listservs, some have inferred a broader application. Many attorneys join organizations both to network, generally, and to share knowledge and information. Whether you are involved in a defense/plaintiff lawyers bar association, a prosecutor/public defenders bar association, a trial lawyers bar association, or any other lawyers’ association, it is likely you will share “war” stories of your practice.
Moreover, there are seasoned lawyers you may seek out for case assistance on new or novel issues. This opinion cautions that while seeking assistance on a one-on-one basis may be permissible, seeking legal assistance through an organization’s community board, chat group, or other mass-communication methods is problematic.
The exercise of caution when using a mass-communication method is not limited to seeking assistance, but also to responding to a request for advice and posting generally. While many states recognize the “powerful tool” that listservs or other mass communication methods offer by facilitating greater interaction among lawyers, including robust discussions of the law, it is a tool to wield carefully and cautiously with a mindfulness towards client confidentiality.
ABA Formal Opinion 511R concludes by cautioning lawyers that they may participate in listserv “discussions such as those related to legal news, recent decisions, or changes in the law, without a client’s consent, if the lawyer’s contributions will not disclose information relating to a client representation.” However, it is with the cautionary adage that even general comments about the law may permit other users to identify the client.
The question of why this opinion is relevant 30 years after the heyday of the listserv remains to be seen. Some attorneys consider this opinion one that may lay the groundwork or the foundation for a later opinion on the use of generative AI and the duty of confidentiality.