Shari Klevens, left, and Alanna Clair, Dentons. Courtesy photo

When it comes to an attorney's obligation to maintain a client's confidential information, the relevant California statute does not mince words. Business and Professions Code §6068(e)(1) provides that it is the duty of an attorney “[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”

Rule 1.6 of the California Rules of Professional Conduct further specifies that disclosure of such information is permitted only where the client provides informed consent or in other very limited circumstances. Nonetheless, despite the strict language, some attorneys play fast and loose when it comes to disclosing confidential information on social media. Now, in the (relatively) new world of social media, there is increasing awareness among firms and the bar as a whole that the same confidentiality rules apply to social media and blogging.

In 2018 the ABA's Standing Committee on Ethics and Professional Responsibility issued an opinion that attempted to provide clarity regarding the scope of an attorney's obligation to maintain client confidences when it comes to postings on blogs or other social media. In Formal Opinion 480, the ABA advised 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.”

The increasing focus on this issue has motivated many attorneys to tread carefully when it comes to discussing client matters on social media or other online settings.

The Scope of the Duty to Maintain Confidentiality

The ABA opinion confirms, as many lawyers already presumed, that confidentiality obligations apply equally to social media activity as they do in other circumstances.  More noteworthy, however, is the breadth of those obligations as applied to social media, which may be broader than some attorneys realize.

Some attorneys may presume that once confidential information — such as client identity– is revealed publicly, that information no longer needs to be protected from disclosure in the same manner. However, Opinion 480 disagrees, and instead instructs attorneys to safeguard “information related to a representation, whatever its source and without regard to the fact that others may be aware of or have access to such knowledge.” Although different jurisdictions have enacted Rule 1.6 with variation, the opinion advises: “Rule 1.6 does not provide an exception for information that is 'generally known' or contained in a 'public record.'”

Thus, attorneys and firms may have an obligation to refrain from online commentary, even for those client or representation details that can be publicly confirmed from other sources.

The opinion additionally provides insight for attorneys considering whether providing a hypothetical situation runs afoul of Rule 1.6. This is a common technique for attorneys seeking guidance from others, or even in sharing real-life examples in seminars. However, attorneys in those situations will often take care to disguise their hypothetical well enough that a third party cannot ascertain the identity or situation of the client.

Exceptions to the Rule

As compared to other jurisdictions, Rule 1.6(b) of the California Rules of Professional Conduct and the related statute contain very limited exceptions to the prohibition on revealing confidential information. Specifically, absent informed consent, the rules permit disclosure only “to the extent that the attorney reasonably believes the disclosure is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death of, or substantial bodily harm to, an individual.”

By comparison, ABA Model Rule 1.6(b) provides a host of exceptions to the general prohibition on revealing confidential information. It allows lawyers to reveal confidential information to the extent necessary to prevent certain death or bodily harm, to prevent the client from committing a crime, to defend against a claim brought by the client, or to comply with a court order.

Whether in California or another jurisdiction, ABA Opinion 480 suggests that the exceptions are less likely to be at play when it comes to a lawyer providing online commentary: “because it is highly unlikely that a disclosure exception under Rule 1.6(b) would apply to a lawyer's public commentary, we assume for this opinion that exceptions arising under Rule 1.6(b) are not applicable.”

Thus, an attorney may consider whether client consent has been or can be provided before disclosing any potentially confidential information. Indeed, many attorneys who are unsure of what can be disclosed (or if the client would object to the attorney commenting on some publicly available information) will simply discuss the issue with the client to see if they consent.

Criticism of the ABA Opinion

Critics of the ABA opinion say that it implicates attorneys' First Amendment rights. Perhaps anticipating this criticism, the opinion notes that ethical rules impacting lawyers' public speech is nothing new. Indeed, lawyers' conduct may be “constitutionally constrained” by professional standards, such that lawyers may have “limited” free speech rights when it comes to client representations. Certainly, there are things that lawyers cannot say or do by virtue of their professional obligations.

In addition, critics have said that the opinion needlessly restricts lawyers from commenting on publicly available client information. According to some, if there is information that is published publicly (such as in a court order or pleading), it is no longer confidential and the attorney is no longer obligated to protect it. States have reached different conclusions regarding an attorney's obligation to protect information that has become public via other sources, so the impact of this opinion remains to be seen. Nonetheless, the ABA opinion and the relevant ethical rules may give attorneys reasons to be wary before posting any potentially confidential information online.

Shari L. Klevens is a partner at Dentons US and serves on the firm's US Board of Directors. She represents and advises lawyers and insurers on complex claims, is co-chair of Dentons' global insurance sector team, and is co-author of “California Legal Malpractice Law” (2014). Alanna Clair is a partner at Dentons US and focuses on professional liability defense.  Shari and Alanna are co-authors of “The Lawyer's Handbook: Ethics Compliance and Claim Avoidance.”