Email List Discussions May Require Client Consent

The Standing Committee on Ethics and Professional Responsibility of the American Bar Association has published Formal Opinion 511 (5/8/2024), which concludes that ABA Model Rule of Professional Conduct 1.6 (on confidentiality) prohibits a lawyer from posting questions or comments on a “listserv” (an automated email list for sharing information and discussions among lawyers) without the client’s informed consent, even if the question or comment is hypothetical or abstract, if there is a “reasonable likelihood” that the question or comment would lead to the disclosure of information about the identity of the client or the client’s situation.

DBE Comment: The opinion states that a lawyer may not disclose even publicly available information, such as transcripts of proceedings. This leads to the somewhat paradoxical conclusion that the likelihood of disclosing client information is higher, and so the likelihood of violating Rule 1.6 is higher, when that information is already part of a public record.

For example, if a lawyer posts a question on an email list about a litigation matter, it may be possible to search public records for active cases in which the lawyer has entered an appearance and so figure out the client’s identity. Furthermore, the combination of public pleadings and the information in the lawyer’s question would provide greater insights into the identifiable client’s situation. By contrast, an abstract question about an estate planning issue related to a living client might be impossible link to any particular client through any publicly available information.

However, because of the uncertainties of determining the “reasonable likelihood” of disclosing client information, it would seem to be best practice not to raise any questions relating to a particular client without the client’s informed consent.

Print Friendly, PDF & Email

Comments are closed.