Most lawyers believe that if they file a document in court or with a public agency the Rules of Professional Conduct (“the Rules”) do not prohibit them from speaking about the information in the document to anyone. Most lawyers believe that what is said in open court can be discussed by a lawyer with anyone. Most lawyers believe that there is a public records exception to the rule of confidentiality that is set forth in Rule 1.6.

Most lawyers would be wrong holding such beliefs, according to the American Bar Association's Standing Committee on Ethics and Professional Responsibility (“the Committee”).

Rule 1.6 provides that any information “relating to the representation of the client” shall be confidential. Rule 1.6 casts a broad net and few understand its breadth. It covers even the identity of a client. On March 6, 2018, in Formal Opinion 480, entitled “Confidentiality Obligations for Lawyer Blogging and Other Public Commentary,” the Committee interpreted Rule 1.6 to include no public records exception. In fact, this is the second time the Committee has observed that there is no public records exception to the duty of confidentiality.

In Formal Opinion 479, the Committee had noted that “information is not generally known merely because it is publically available or might qualify as a public record or as a matter of public record.” In Formal Opinion 480, the Committee unequivocally concludes that “the duty of confidentiality extends generally to information related to the representation whatever its source and without regard to the fact that others may be aware of or have access to such knowledge.”

We believe the Committee's interpretation of Rule 1.6 is too broad in recognizing no exceptions for matters of public record. As the Preamble to the Rules explain, the Rules are supposed to be rules of reason, meaning, they are to be practical; they should be imbued with common sense. The Committee's interpretation of Rule 1.6 does not recognize that Rule 1.6 is a rule of reason.

Moreover, Rule 1.6 provides that “[a] lawyer shall not reveal information relating to the representation of a client.” (Emphasis added.) There may be circumstances, for instance, where knowledge of a matter is so well known that the disclosure of facts regarding the matter is a revelation to hardly anyone. That would apply to scores of high profile cases where the public has been well informed about the case and the attorneys involved in the case. Formal Opinion 480 does acknowledge that its interpretation has First Amendment implications, but does not explain what those implications are. Nor does it weigh an individual's right to confidentiality with the public's right to know and be informed about court proceedings and decisions.

Finally, the opinion does not recognize how damaging its censure could potentially be to clients. In this fast pace age where almost anything can go viral instantly, gone are the days when most lawyers representing clients in pending cases should comment “no comment” to reporters when asked about a pending case. Without violating any court order or improperly influencing a tribunal, it is often necessary for a lawyer to advocate for a client when inquiries are made by the press. A “no comment” comment often is construed as weak, and worse, as an admission. Some experts have opined that in today's world to make a “no comment” comment is to commit legal malpractice. Yes, in an ideal world the lawyer could and should get or have gotten the client's consent. But we do not practice in an ideal world, but one in which rules of reason govern our conduct.