We presume that most attorneys in New Jersey at one time or another, if not more frequently, have posted on a professional listserv or participated in discussions with colleagues about issues, theories and questions of law as a means of helping a client in the successful resolution of a case. American Bar Association Formal Opinion 511, titled "Confidentiality Obligations of Lawyers Posting to Listservs," issued on May 8, discusses "whether, to obtain assistance in a representation from other lawyers on a listserv discussion group, or post a comment, a lawyer is impliedly authorized to disclose information relating to the representation of a client or information that could lead to the discovery of such information." How often after a listserv discussion does a lawyer walk into a courtroom and hear arguments in a case being argued by a person with whom he or she chatted on a listserv thereby permitting the observer to identify the client? How often has an attorney read in a professional journal or other media something related to the subject of the listserv discussion?

RPC 1.6 precludes a lawyer from revealing "information relating to representation of a client unless the client consents after consultation" except in certain instances as provided in the rule, and RPC 1.6(f) expressly provides that "[a] lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client." "Informed consent" is defined in RPC 1.0(e).

Fortunately, New Jersey case law and comments regarding RPC 1.6 clarify that the rule primarily targets the disclosure of "protected information" and the disclosure of information that may enable a party to connect the disclosure to a particular client.