The Professional Ethics Committee for the State Bar of Texas recently advised that informal lawyer-to-lawyer consultations for the benefit of the client are permissible, subject to lawyers’ duty of confidentiality. online
The opinion presents a statement of facts in which a lawyer has engaged in a series of online or in-person informal lawyer-to-lawyer consultations. In the scenario, the lawyer is a member of an online discussion group which operates as an active forum for lawyers to exchange ideas relating to novel issues. The lawyer then encounters a challenging issue during the course of representation. In furtherance of that representation and to the client’s benefit, the lawyer authors a post and requests comments from members of the online discussion group. Alternatively, the lawyer opts for a direct, informal consultation with a colleague without the intent of retaining the responding lawyer.
The Committee recognized that it is common for lawyers to have informal consultations with their colleagues regarding client-related issues. The Committee acknowledged, however, that lawyers must be careful not to violate their duty of confidentiality under Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct.
As a matter of course, the Committee advised that Rules 1.05(d)(1) and (2) allow for the disclosure of a limited amount of unprivileged confidential information that the inquiring lawyer reasonably believes would further the representation of his or her client and when it is not reasonably foreseeable that the disclosure would prejudice the client. Specifically, Rule 1.05(d)(1) states that a lawyer may reveal unprivileged confidential information “[w]hen impliedly authorized to so in order to carry out the representation.” Rule 1.05(d)(2) further states that a lawyer may disclose unprivileged confidential information when the lawyer has reason to believe it is necessary to do so in order to “carry out the representation effectively.”
Accordingly, the Committee then provided a series of considerations to guide an inquiring lawyer’s determination of the quantity and quality of permissible disclosure. First, the disclosure “should not be greater than the lawyer believes necessary to accomplish the intended purpose.” If possible, inquiring lawyers should limit informal consultations to general or abstract inquiries. Next, to the extent the lawyer believes disclosure is necessary, “the inquiring lawyer should employ a hypothetical that does not identify the client.” In the event that the lawyer “determines that [the] consultation requires disclosure of privileged confidential information, or unprivileged confidential information that foreseeably might prejudice the client if disclosed, the lawyer must ensure that the client is made aware of the potential consequences of the disclosure and consents” despite the risks. If, on the other hand, “the client has expressly instructed the lawyer not to reveal confidential information, the lawyer may not do so even if the exceptions set forth in Rules 1.05(d)(1) and (2) would otherwise apply.” Beyond that, it is prudent for inquiring lawyers to seek the responding lawyer’s agreement to preserve confidentiality.
Finally, the Committee also advised responding lawyers to take reasonable steps to ensure that their advice or guidance to inquiring lawyers would not adversely affect their professional obligations to present or former clients.
Read the full opinion here.
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