The American Bar Association’s Standing Committee on Ethics and Professional Responsibility (“ABA”) has issued Formal Opinion 480 warning lawyers who participate in online public commentaries (Twitter, Facebook, blogs etc.) that they cannot always circumvent their duty of confidentiality, under Model Rule 1.6, by positing fact patterns that include a client’s information as a “hypothetical.”
The ABA understands that a lawyer’s engagement in public commentaries and providing of examples via hypotheticals is a beneficial way for lawyers to share knowledge, opinions, and experiences with the general public. More recently, lawyers have increasingly been doing so by way of online platforms.
Nevertheless, the ABA reminds lawyers that they are prohibited from referencing in their commentaries a client’s confidential information, including the client’s identity, without the client’s consent or if not otherwise impliedly authorized elsewhere in the Model Rules. This prohibition extends to hypotheticals if there is a reasonable likelihood that a third party may nonetheless ascertain the identity or situation of a lawyer’s client through the hypothetical’s set of facts.
To read the full opinion, click here.
