More on the ABA’s Ethics of Blogging Opinion
Posted on March 14, 2018
A few days ago I noted the ABA’s new ethics opinion on law blogs. After reading the opinion, I removed the few posts at Letters Blogatory about my own cases while I gave the opinion some more thought.
The rule at the heart of the opinion is Rule 1.6 the rule on confidentiality. The version of Rule 1.6 in the Model Rules of Professional Conduct, which the ABA promulgates but which is is not actually the law in any state (unless adopted by that state), reads:
A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is [within certain limited exceptions].
The ABA opinion defines “information relating to the representation” broadly, to include among other things the identity of the client.
Now here is the version of Rule 1.6 adopted by the Supreme Judicial Court, the highest court in Massachusetts and the court that regulates the bar here in Massachusetts:
A lawyer shall not reveal confidential information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is [within certain limited exceptions].
So while the Model Rule treats all information relating to the representation of a client as confidential, our law in Massachusetts treats confidential information relating to the representation of a client as confidential. The official commentary to the Massachusetts rule defines “confidential information:”
“Confidential information” consists of information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the lawyer has agreed to keep confidential. “Confidential information” does not ordinarily include (i) a lawyer’s legal knowledge or legal research or (ii) information that is generally known in the local community or in the trade, field or profession to which the information relates. A lawyer may not disclose confidential information except as authorized or required by the Rules of Professional Conduct or other law. … Information that is “generally known in the local community or in the trade, field or profession to which the information relates” includes information that is widely known. Information about a client contained in a public record that has received widespread publicity would fall within this category. On the other hand, a client’s disclosure of conviction of a crime in a different state a long time ago or disclosure of a secret marriage would be protected even if a matter of public record because such information was not “generally known in the local community.” As another example, a client’s disclosure of the fact of infidelity to a spouse is protected information, although it normally would not be after the client publicly discloses such information on television and in newspaper interviews. The accumulation of legal knowledge that a lawyer gains through practice ordinarily is not client information protected by this Rule. In addition, the factual information acquired about the structure and operation of an entire industry during the representation of one entity within the industry would not ordinarily prevent an attorney from undertaking a successive representation of another entity in a matter when the attorney had no other relevant confidential information from the earlier representation and there was no other conflict of interest at issue.
My colleague here in Massachusetts, Robert Ambrogi, points out that the First Amendment bears on the power of the state to regulate lawyer speech, and maybe there is a First Amendment response to the new opinion, but frankly I am not that interested in the First Amendment aspect. If the Rules of Professional Responsibility forbid something, I do not want to do it even if constitutional limitations prevent the state from punishing me for it. So I want to delve into the rule and the ABA’s take on it, and whether the law in Massachusetts is different.
The problem with the ABA’s take on the Model Rule, it seems to me, is its insistence that the identity of the client itself is within the scope of the rule. Of course this is true in a sense. I would never talk about a client or even the fact that I represent a client. Clients don’t want to be talked about. But if I represent Smith in Smith v. Jones, and if the identity of the client is information that cannot be disclosed (as a general matter) without client consent, then I really can’t have professional discussions with fellow lawyers about the case without client consent. And what is Letters Blogatory but an extended professional discussion with colleagues? (Okay, more of a monologue than a discussion!)
This is an easier problem for physicians, because they don’t have the system of precedents to deal with. If I am a doctor I can describe an interesting case to colleagues without identifying the patient. But lawyers can’t really do that, because in order to make use of a case, you have to know its name.
The Massachusetts rule deals with this problem by specifying the definition of “confidential information.” Material that is privileged is, of course, confidential, but nothing in a brief or a published decision is privileged. Material a client is likely to think “embarrassing or detrimental” is confidential, but this just means that the lawyer/blogger should use discretion. I would never write anything about a client that would likely embarrass him or her. And of course, lawyers must keep confidential anything they agree to keep confidential. In an ordinary case, then, it is permissible to write about a brief or a published decision even if it involves one’s own clients.
There is an additional wrinkle. While I, like most lawyers, am admitted to the bar of a particular state, I practice in the state and federal courts in other states regularly. In fact, most of the work I do that I might write about here is out-of-state. This raises conflict-of-laws problems, since in general when I am admitted pro hac vice to practice in an out-of-state court, that court may apply its own rules of professional conduct.
In light of all of these considerations, I feel comfortable restoring the (few) posts about work I have done in Massachusetts. For now, I am not going to restore my posts about out-of-state work. I think the issues there are a bit more complicated.