Does a secret stay a secret when it is posted on the Internet for anyone to find out about? According to common sense about confidentiality, it might seem obvious that sharing something online would utterly break any secrecy. Opinion
However, the State Bar of California disagrees and says such client secrets should still be protected. According to a recently finalized opinion, “[a] lawyer may not disclose his client’s secrets, which include not only confidential information communicated between the client and the lawyer, but also publicly available information that the lawyer obtained during the professional relationship which the client has requested to be kept secret or the disclosure of which is likely to be embarrassing or detrimental to the client.”
Even after the attorney-client relationship ends, a lawyer still cannot disclose potentially embarrassing or detrimental information—despite the fact that the information could be easily discovered on the Internet or in court files, the opinion said.
The new guideline may seem confusing in light of ABA Model Rule 1.9, which provides that information ceases to be a client secret when it is “generally known.” But a footnote in the opinion explains that “generally known” and “publicly available” are different ideas: generally known information is that which most people already know, whereas publicly available information is accessible by the public through searching different online or court sources.
The California state bar explains its guidelines through several hypotheticals about a lawyer who defended a hedge fund manager against fraud claims. For example, in one hypothetical the hedge fund manager blogged about confidential information, and the opinion states that the lawyer had a duty to protect that information as a client secret; therefore forwarding the blog to friends would violate that duty. These hypotheticals illustrate that client information does not lose its confidential nature merely because it is publicly available.
The opinion emphasizes a lawyer’s core duty to keep quiet about clients’ sensitive information, even if some members of the public could share and discuss the same information freely.
To read the full opinion, click here.
