Looking for practice advice on email discussion lists? Don't forget client confidentiality responsibilities
Lawyers must be careful in revealing information about clients on an email discussion list group, even when seeking help in the representation, according to a new ABA ethics opinion. (Image from Shutterstock)
Lawyers must be careful in revealing information about clients on an email discussion list group, even when seeking help in the representation, according to a new ABA ethics opinion.
According to Formal Opinion 511, published Wednesday by the ABA Standing Committee on Ethics and Professional Responsibility, the direction includes providing hypotheticals, or sharing information in an anonymized form. Both could violate the duty of confidentiality if they could be “reasonably connected to an identifiable client.”
The opinion relates to ABA Model Rule of Professional Conduct 1.6(a), which focuses on the confidentiality of information.
A client’s informed consent is needed for posting about their matter, including for hypotheticals, if the writing could identify the individuals, according to the opinion.
It also acknowledges that lawyer email discussion lists can be useful in educating attorneys without regard to particular client representations. However, lawyers must “remain aware of the possible risks to confidentiality involved in any posts to a Listserv®,” according to the opinion.
Lawyers can ask questions that “may be so abstract and broadly applicable” that a client’s identity could not be reasonably discovered. In such situations, the opinion explains, “a lawyer may post general questions or hypotheticals because there is no reasonable possibility” that someone could connect that with a particular client.
“Typical Listserv® discussion groups include participants whose identity and interests are unknown to lawyers posting to them and who therefore cannot be asked or expected to keep information relating to the representation in confidence,” according to the opinion.
An ABA press release is here.
Updated on July 13 to include the registration mark for “Listserv®.”
