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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-3839" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2018/03/Hypothetical-300x205.jpg" alt="" width="300" height="205">We&rsquo;ve written before about&nbsp;the breadth of the&nbsp;duty of confidentiality we owe to our clients, and how it even extends to matters that you think are safe to discuss because they are of &ldquo;public record.&rdquo;&nbsp; &nbsp;(See <a href="https://www.thelawforlawyerstoday.com/2017/12/3682/">here</a> and <a href="https://www.thelawforlawyerstoday.com/2016/03/2433/">here</a>.)&nbsp; Now comes the ABA&rsquo;s latest on the subject of lawyer&nbsp;&ldquo;public commentary&rdquo; &mdash; <a href="http://filehost.thompsonhine.com/uploads/aba_formal_opinion_480.authcheckdam_f143.pdf">Formal Opinion 480</a> (Mar. 6, 2018).&nbsp; And it prompts us to be wary of a couple pitfalls when it comes to what we say about clients in online articles, on twitter, at webinars, in podcasts and through traditional print publications &mdash; all of which the opinion refers to as &ldquo;public commentary.&rdquo;
Duty &ldquo;extends generally&rdquo;
All such&nbsp;public commentary, the ABA reminds us, whether on-line or not, must comply with the relevant jurisdiction&rsquo;s version of <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_6_confidentiality_of_information.html">Model Rule 1.6</a>.&nbsp;&nbsp;The rule&nbsp;requires us to maintain the confidentiality of all information relating to the representation of a client, unless that client has given informed consent to the disclosure, the disclosure is impliedly authorized to carry out the representation, or the disclosure is permitted by a specific exception in Rule 1.6(b).
The confidentiality&nbsp;rule, as is frequently said, is much broader than the attorney-client privilege, and&nbsp;includes all information relating to the representation, whatever its source.&nbsp; Even the identity of the client is usually deemed to be confidential information, the ABA ethics committee&nbsp;notes in this&nbsp;newest, foot-note-heavy&nbsp;opinion.&nbsp; And, adds the committee, it&rsquo;s highly unlikely that a disclosure exception (except for consent) would apply when a lawyer engages in this sort of public commentary.
Don&rsquo;t hype the hypo
That brings us to &ldquo;hypotheticals.&rdquo;&nbsp; We all use them &mdash;&nbsp;from law profs in class, to lawyers seeking informal practical advice from colleagues&nbsp;at other firms, to gurus of various stripes who&nbsp;use real-life examples&nbsp;at&nbsp;legal CLE seminars.&nbsp; But, says the ABA committee, beware:&nbsp; &ldquo;A violation of Rule 1.6(a) is not avoided by describing public commentary as a &lsquo;hypothetical,&rsquo; if there is a reasonable likelihood that a third party may ascertain the identity or situation of the client from the facts.&rdquo;
For example, in a widely-reported case mentioned in the ABA opinion, an Illinois lawyer got a <a href="https://www.iardc.org/LINKS/OC09_89.html">60-day suspension</a>&nbsp;in her home jurisdiction&nbsp;for violating&nbsp; Rule 1.6, when she blogged about her criminal defense clients using either their first names, a derivation of their first names, or their jail ID number.&nbsp; Reciprocal discipline was <a href="http://caselaw.findlaw.com/wi-supreme-court/1572272.html">imposed</a> in Wisconsin.
In light of the ABA opinion, you&rsquo;re going to want to make sure that any real-life client situations you describe in&nbsp; public commentary is so thoroughly disguised that no one can tell that it&rsquo;s real.&nbsp; If you&rsquo;re using social media to educate and engage, there&rsquo;s arguable benefit&nbsp;in discussing actual situations in a hypothetical&nbsp;way, while being sure to scrub the real facts out.&nbsp; But as we&rsquo;ve said before, if you&rsquo;re just making cocktail party chit-chat, why even go there?&nbsp; It&rsquo;s not worth the risk of divulging confidential client information.
Trial publicity statements
The ABA opinion also briefly notes the constraints that <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_5_impartiality_decorum_of_the_tribunal.html">Model Rule 3.5</a> puts on using public commentary to influence the court of public opinion.&nbsp; The rule prohibits a lawyer from seeking to influence a judge, juror, prospective juror, or other official by means prohibited by law, and cites the case of a Louisiana lawyer <a href="http://caselaw.findlaw.com/la-supreme-court/1706431.html">disbarred</a> for, among other things, using an internet petition campaign to contest the rulings of&nbsp;a judge presiding over a custody dispute involving her client.&nbsp; That kind of conduct can also obviously lead to trouble.
All in all, the new opinion is a straightforward application of Rule 1.6 to this age of public commentary; but it is a good wake-up call for those who need one.

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Ethics

Legal Ethics, Professional Responsibility and the Business of Law

Watch those hypotheticals, says ABA in new opinion on blogs, tweets, “public commentary”