Be Mindful of These Ethical Pitfalls When Discussing Clients and Their Matters

It is human nature for lawyers to talk about the matters they have worked on. Indeed, they are often so busy they have nothing else to talk about. But, in doing so, they must remember the ethical rules that surround such conversations. In this article we examine some ethical perils that arise when lawyers discuss their clients or their matters, particularly where their comments may end up in the press or on social media.

Public comments about client matters implicate several New York Rules of Professional Conduct (Rules). Rule 1.6 requires us to “not knowingly reveal confidential information,” and the Rule defines what is “confidential.” It also provides that “‘[c]onfidential information’ does not ordinarily include … information that is generally known in the local community or in the trade, field or profession to which the information relates.” Comment [5] to Rule 1.6 states, in relevant part, “lawyers in a firm may, in the course of the firm’s practice, disclose to each other information relating to a client of the firm.” Lawyers must understand that client identity is confidential information relating to the representation of the client within the meaning of Rule 1.6 that may not be revealed without the client’s consent. N.Y. State Ethics Opinion 1088 (2016) explicitly states that even “[i]f the client has not requested that the lawyer keep the client’s name and the fact of representation confidential, then the lawyer must determine whether such information is publicly known and, if not, whether disclosing the information is likely to be embarrassing or detrimental to the client.” In turn, this raises two issues: When is information “publicly known” and when is it detrimental? The mere fact that a decision in a matter has been reported as a decided case does not necessarily make it “publicly known.” There must be dissemination in some fashion beyond those who were involved in the matter such that it “is generally known in the local community or in the [relevant] trade, field or profession.” There are any number of reasons clients may not want their identity to become publicly known in connection with the particular matter, perhaps because of the nature of the matter itself or even perhaps the fact that they retained the particular lawyer handling the matter. ABA Formal Eth. Op. 480 (2018) similarly noted that “[l]awyers who blog or engage in other public commentary may not reveal information relating to a representation, including information contained in a public record, unless authorized by a provision of the Model Rules.”