MCLE Self Study

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September 2015  |  Earn one hour of MCLE Credit in Legal Ethics

Client confidentiality and social media

By Larry Doyle

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Doyle

MCLE Self-Assessment Test

September 2015

SAMPLE TEST QUESTIONS

BELOW ARE SAMPLE QUESTIONS FROM THIS MONTH'S MCLE SELF-ASSESSMENT TEST.

1. All U.S. jurisdictions except California require attorneys to, at minimum, “not reveal information relating to the representation of a client” except under specified circumstances.


2. California’s duty of confidentiality is found exclusively in California’s Rule of Professional Conduct.


3. California’s duty of confidentiality is subject to numerous exceptions, mostly relating to client protection.


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Most articles about attorney blogging and other use of social media seem to focus on whether these blogs and other social media postings constitute attorney advertising. However, there may be far more important ethical issues for the blogging or “Facebooking” attorney to worry about.

Except in rare instances, most rules violations relating to attorney advertising can be resolved by changing the post or adding a disclaimer. In contrast, violation of other ethical rules and precepts can result in attorney discipline – including suspension and disbarment – and malpractice suits.

The rise of social media has blurred the line between personal and private communications for everyone, but perhaps most of all for lawyers. Because of the fiduciary nature of the profession, lawyers are never really “off duty” as far as their ethical obligations to their clients are concerned. A comment by a lawyer about a case or client on his or her personal blog or Facebook page has the same impact and implication as if it were made on the lawyer’s professional website and is subject to the same ethical obligations and standards.

The ethical standard most at risk of being violated probably is the attorney’s duty of confidentiality. All jurisdictions require, at minimum, attorneys not to “reveal information relating to the representation of a client” except under specific, narrow circumstances relating primarily to public protection. That is the dictate of Model Rule of Professional Conduct (MRPC) 1.6(a), a variation of which has been adopted in all states except California.

California’s duty of confidentiality is similar to MRPC 1.6, but arguably even more absolute. The duty, found in §6068(e)(1) of the Business and Professions Code, and replicated in California Rule of Professional Conduct (CRPC) 3-100, requires California attorneys to “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” The sole exception to the rule (§6068(e)(2), also reflected in CRPC 3-100), is that a California attorney may reveal confidential information relating to the representation of a client to prevent a criminal act likely to result in death or substantial bodily harm. The statute does not include other exceptions in Model Rule 1.6.

As the California Supreme Court has recognized, “the protection of confidences and secrets is not a rule of mere professional conduct, but instead involves public policies of paramount importance which are reflected in numerous statutes.” (In re Jordan (1972) 7 Cal.3d 930). What constitutes a client’s secrets and confidences under B&P Code §6068(e) is extensive, applying to “any information gained in the engagement which the client does not want disclosed or the disclosure of which is likely to be embarrassing or detrimental to the client.” (Cal. State Bar Formal Opn. No.2004-165). Unlike the attorney-client privilege in Evidence Code §950 et seq., with which it is often confused, the duty of confidentiality is not limited to information communicated between the attorney and client, but extends to information gained by the attorney from other sources.

How do these requirements play out in real life?

First, it’s clear that blogging about your current clients without their consent is a bad idea. The American Bar Association has opined (ABA Formal Opinion 10-457) that even identifying current or former clients by name on an attorney’s website requires the client’s prior consent, and some states (e.g., New York and North Carolina) specifically require attorneys to obtain client consent before identifying them in any online offerings. Although California’s rules impose no similar requirement, it is a smart practice.

Blogging or posting about real clients can be dangerous even if the client is not specifically named in the blog or post, if the identity can be determined from other sources. The Model Rules address this specifically in Comment [4] to Model Rule 1.6, which states that the prohibition against revealing client confidential information “also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person.”

A classic example of this is the case of Kristine Peshek, an Illinois public defender who published a blog about a variety of topics, including her cases. Although Peshek didn’t use the full names of her clients, she often referred to them by first name or case number, from which their actual identities could be ascertained without excessive effort. Peshek was suspended from practice for 60 days by the Illinois Supreme Court for both violating her clients’ confidentiality and for failing to report a second client’s possible perjury to the court (In re Peshek, M.R. 23794 (Ill. May 18, 2010)) and was reciprocally suspended from practice in Wisconsin as well (In re Disciplinary Proceedings Against Peshek, 798 N.W.2d 879 (Wis. 2011). More importantly, she was fired from her 18-year job as a deputy public defender.

Blogging, posting or responding online to negative comments posted by former clients is also a dangerous practice from an ethical standpoint. Committee on Professional Responsibility and Conduct member Drew Dilworth pointed out the pitfalls in his article in the November 2014 California Bar Journal, “Lawyers on the defensive: the ethical considerations of responding to online reviews.” Both the Los Angeles County Bar Association (Formal Opinion No. 525) and Bar Association of San Francisco (Formal Opinion No. 2014-1) recently opined that although a public response by a lawyer to a negative online review by a former client is not per se improper, it must not disclose any confidential information without the former client’s consent or violate the attorney’s duty of loyalty to the former client, and it must be proportionate and restrained, Dilworth wrote.

An attorney’s failure to adhere to these tenets was demonstrated recently in In re Skinner (2013), 740 S.E.2d 171, in which the Georgia Supreme Court rejected a petition for a reduction in discipline (from 60-day suspension to reprimand) by a lawyer who had responded to a negative online review by a former client by disclosing some of that client’s confidential information online. The court held that the original suspension better reflected the severity of the offense.

But what about blogs involving former clients with whom the attorney no longer has a professional relationship? The answer is not as clear, thanks to a 2-year-old decision by the Supreme Court of Virginia denied review by the U.S. Supreme Court.

There, Hunter v. Virginia State Bar, Ex Rel. Third District Committee (2013), 744 S.E.2d 611, (Cert. Denied, Hunter v. Virginia State Bar (2013), 133 S. Ct. 2871), the Virginia Supreme Court found that attorney Horace Hunter’s use of case information from his former clients was protected speech under the First Amendment, no matter how embarrassing it might be to the former clients. The court reasoned that the duty of confidentiality did not apply because all of Hunter's blog posts involved cases that had been concluded and that the speech was protected because all of the information contained within Hunter's blog was public information and would have been protected speech had the news media or others disseminated it. The court ruled that “(i)t is settled that attorney speech about public information from cases is protected by the First Amendment, but it may be regulated if it poses a substantial likelihood of materially prejudicing a pending case.” Since the cases Hunter was commenting on were no longer pending, the court held he had the same right to comment as any journalist or other citizen.

Satisfying as the Hunter decision may be to some, California attorneys are urged to regard the decision with caution, for several reasons.

First, California has an abundance of case law indicating that the duty of confidentiality does not end with the termination of a professional relationship. In Dixon v. State Bar (1982), 32 Cal.3d 728, an attorney being sued by a former client for harassment responded with a gratuitous declaration about the client’s concern about “an affair that her husband supposedly had with [C's] sister eight years ago." The court found the declaration irrelevant to any issues then pending before the court and made solely to harass and embarrass both C and C's sister. For this and other violations, the court suspended Dixon from the practice of law for five years.

More recently, in Oasis West Realty, LLC v. Goldman (2011), 51 Cal. 4th 811, the California Supreme Court held that “following termination of a representation, a lawyer must: ... (d) take no unfair advantage of a former client by abusing knowledge or trust acquired by means of the representation.” The Oasis court also dispelled the idea that confidentiality to former clients only applies in conflict of interest cases involving new clients by stating that it “is not difficult to discern that use of confidential information against a former client can be damaging to the client, even if the attorney is not working on behalf of a new client and even if none of the information is actually disclosed.”

The Oasis court also addressed one of the issues raised in Hunter by quoting favorably from the Restatement 3d of the Law Governing Lawyers, that “a lawyer's right to freedom of expression is modified by the lawyer's duties to clients.” This view is also reflected in the concurring opinions of Justices Sandra Day O’Connor in Gentile v. State Bar of Nevada (1991) 501 U.S. 1030 [“Lawyers are officers of the court and, as such, may legitimately be subject to ethical precepts that keep them from engaging in what otherwise might be constitutionally protected speech.] and Potter Stewart in In re Sawyer (1959), 360 U. S. 622 [“A lawyer belongs to a profession with inherited standards of propriety and honor, which experience has shown necessary in a calling dedicated to the accomplishment of justice. He who would follow that calling must conform to those standards. ... Obedience to ethical precepts may require abstention from what in other circumstances might be constitutionally protected speech.”]

The final issue raised in Hunter is whether and to what extent an attorney’s duty of confidentiality to a client or former client is relieved if that information is publicly available. This, too, is an area of legal uncertainty where attorneys should tread with caution.

In a case very similar on its facts to Hunter, In re Johnson (2000), 4 Cal. State Bar Ct. Rptr. 179, the State Bar Court found that an attorney’s revelation in confidence that his client had served time for a felony conviction violated the duty of confidentiality because, even though the conviction was public record, it was not easily discovered. Several California ethics opinions also agree that the duty of confidentiality may be applied even when the facts are already part of the public record or the information may be obtained from other sources (see, e.g., Los Angeles County Bar Assn. Formal Opn. Nos. 267 & 386).

There is a clear distinction to be made between information publicly available if one knows where and how to look and/or will pay, and information truly public, in the sense of being widely distributed through traditional news or social media outlets.

The Restatement (Third) of Law Governing Lawyers § 59 (2000) distinguishes between “generally known information” and information merely publicly available. The Restatement notes that “(w)hether information is generally known depends on all circumstances relevant in obtaining the information. ... Information is not generally known when a person interested in knowing the information could obtain it only by means of special knowledge or substantial difficulty or expense. Special knowledge includes information about the whereabouts or identity of a person or other source from which the information can be acquired, if those facts are not themselves generally known.” It further clarifies that “if a current client specifically requests that information of any kind not be used or disclosed in ways otherwise permissible, the lawyer must either honor that request or withdraw from the representation.”

Using client information in social media is something best done with caution – and ideally with the consent of the client or former client.

Larry Doyle is a Sacramento-based attorney, lobbyist and mediator, and a member of the State Bar’s Committee on Professional Responsibility and Conduct (COPRAC) and the Association of Professional Responsibility Lawyers (APRL). The opinions expressed here are his own.


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