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Can lawyers use social media such as Facebook to seek advice from other attorneys for the benefit of their clients without running afoul of the Texas Disciplinary Rules of Professional Conduct?

An opinion from the State Bar of Texas' Professional Ethics Committee recently tackled that question and essentially blessed lawyers' use of attorney internet forums to get answers to tricky legal questions, as long as the query does not give up too much about their client's identity.

According to the opinion, it is common for attorneys to have informal lawyer-to-lawyer consultations touching on client-related issues in online discussion groups, at CLE seminars, or when a lawyer seeks advice from a trusted mentor.

But the opinion points out that Disciplinary Rule 1.05 prevents lawyers from knowingly revealing confidential information about a client, and Rule 1.05(a) broadly defines the term “confidential information” as all information protected by the attorney-client privilege, as well as some unprivileged information provided by the client or acquired by the lawyer during the representation of the client.

However, not all lawyer-to-lawyer consultations involve the revelation of confidential information, and inquiring lawyers may consider it necessary to provide a certain amount of factual context to obtain useful feedback.

And the opinion notes that disciplinary rules have several exceptions when it comes to revealing unprivileged information about a client, including Rule 1.05(d)(1), which allows such revelations when a lawyer is authorized to do so in order to carry out the representation; and Rule 1.05(d)(2), which allows it when an attorney has a reason to do so to carry out the representation effectively.

“The Texas Disciplinary Rules of Professional Conduct do not categorically prohibit informal lawyer-to-lawyer consultation for the benefit of a client, whether the consultation occurs in an online discussion group, an in-person meeting, or otherwise,” the opinion states. “However, inquiring lawyers must honor their duty of confidentiality. …

“If possible, the inquiring lawyer should limit such consultation to general or abstract inquiries that do not disclose confidential information relating to the representation,” the opinion continues. “If it is not reasonably possible to address the issues in question using a general or abstract inquiry, a lawyer may reveal a limited amount of unprivileged client information in a lawyer-to-lawyer consultation, without the client's express consent, when and to the extent that the inquiring lawyer reasonably believes that the revelation will benefit the inquiring lawyer's client in the subject of the representation.”

Scott Rothenberg, a Houston solo who has served as an expert witness on Texas legal ethics and who teaches a State Bar of Texas CLE course on the subject, said he posed the question to the ethics committee after observing discussions of legal questions between lawyers on Facebook.

The online discussions were vigorous and encouraging, but Rothenberg worried that some lawyers gave away enough information to make clients identifiable through an electronic court records search.

“It's a balancing situation that is very perilous because on one hand, lawyers supporting lawyers by being mentored is strongly in a client's best interest, but protecting a client's confidential information is also in a client's best interest,” Rothenberg said.

Rothenberg suggested that lawyers familiarize themselves with information available on district, intermediate appellate and Texas Supreme Court websites about a client's case before asking a question about it on social media that may reveal the client's identity inadvertently.

He also suggested lawyers place language in their employment agreements informing clients that they may use social media or informal consultations with other attorneys to better serve their interests.

“That will take care of 90 percent of the issues about lawyers discussing issues on social media,'' Rothenberg said.