Today’s question: does the 1st Amendment prohibit the Supreme Court from sanctioning a lawyer who reveals client information that is public record?
Here’s how the issue would arise.
Rule 1.6 prohibits lawyers from revealing information relating to the representation of a client. There are some exceptions. They are:
- disclosure is impliedly authorized to carry out the representation;
- the client consents to disclosure;
- disclosure is required by Rule 1.6(b); or,
- disclosure is permitted by Rule 1.6(c).
As you see, “it’s public record” is not one of the exceptions.
Rule 1.6 applies to current clients.
With respect to former clients, Rule 1.9(c)(2) prohibits a lawyer from “revealing information relating to the representation as these rules would permit or require with respect to a client.” Basically, the rule refers back to Rule 1.6 and does not include an exception for information that is “public record.”
Similarly, Rule 1.9(c)(1) prohibits a lawyer from using “information relating to the representation to the disadvantage of the former client except as these rules would permit or require, or when the information has become generally known.” (emphasis added). As I’ve blogged several times recently, the ABA’s Standing Committee on Ethics and Professional Responsibility has opined that information that is in the public record is not necessarily “generally known.” Here are the blog posts:
- March 2018: ABA & Client Confidences: It’s Deja Vu All Over Again
- December 2017: Can’t keep quiet? Try harder.
- October 2017: Hey Lawyers! STFU!!!
The October post includes cites to several cases that stand for the notion that the prohibition against disclosing information relating to a representation is not lessened by the fact that the information is public record. Or, for a more detailed explanation how broad the confidentialy rules are, the ABA’s Litigation News ran this article by Edward Feldman.
But there’s an important case that holds otherwise. The case is Hunter v. Virginia State Bar.
Attorney Hunter blogged. His posts caught the attention of the Virginia State Bar and resulted in a disciplinary prosecution. The VSB charged Attorney Hunter with violating the advertising rules. Those charges aren’t relevant here.
What is relevant is that the VSB also charged Attorney Hunger with violating Rule 1.6 “by revealing information that could embarrass or likely be detrimental to his former clients by discussing their cases on his blog without their consent.”
At a disciplinary hearing, the VSB put on evidence that Hunter’s former clients “believe that the information posted was embarrassing or detrimental to [them], despite the fact that all such information had been previously revealed in court.”
Hunter was publicly admonished following a conclusion that he had violated both the advertising rules and Rule 1.6.
In an intermediate-level appeal, a circuit court upheld the advertising violations, but dismissed the 1.6 charge on the grounds that the rule, as applied, violated the 1st Amendment. An appeal to the Virginia Supreme Court followed.
On appeal, the VSB conceded that the blog posts were about former clients, contained information that was public, and would have been protected speech if disseminated by the news media or anyone other than Hunter.
The Supreme Court noted that it had been “called upon to answer whether the state may prohibit an attorney from discussing information about a client or former client that is not protected by attorney-client privilege without express consent from that client.”
The Court’s answer: no. Specifically,
- “To the extent that the information is aired in a public forum, privacy considerations must yield to First Amendment protections. In that respect, a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom.”
The issue has gained some traction lately, largely in response to the ABA’s most recent formal advisory opinion. Here’s an excerpt from a blog I posted last week. It refers to criticism of the ABA’s opinion that “public record” is not necessarily “generally known.”
- “So a lawyer may not ‘reveal’ information that is contained in a public record. But how can someone reveal something that is already public? To reveal is to make something public that was secret.”
Interesting point. I don’t necessarily disagree. However, on the flip side, what if you went through a messy divorce 10 years ago?
Imagine that it went to trial. At trial, details emerged that remain embarrassing today. Yes, the trial was public, but, really, in label only. Nobody went, certainly not the press. The details are not, by any stretch of the imagination, generally known. The only way anyone could access the details would be by going to the great length of ordering a transcript. Public? Yes. Generally known? No.
How would you feel if your lawyer blogged the details tomorrow?”
Josh King is Chief Legal Officer at Avvo. He commented on my post:
“Having hired lots of lawyers over the last 20+ years, of course I wouldn’t want them blabbing about my matters without my consent.
But there’s a difference between a best practice and what the law can prohibit. I’m quite sure that Rule 1.6 can’t constitutionally be applied to discipline a lawyer for stating something that is in the public record.”
Keith Lee has a blog at Associate’s Mind. In response to Josh’s post, Keith tweeted a quote from the Hunter decision:
“Rule 1.9 is an absurdly broad rule that perpetually bans attorney speech for all purposes and with regard to all information, including information in the public domain. The rule has no rational, underlying policy, and is not even rooted in clients’ actual expectations regarding confidentiality . . . Instead, Rule 1.9 should be interpreted to permit an attorney to discuss, write about, or otherwise disclose publicly-available information relating to a former client’s case, provided the attorney does not contradict the former client’s position in that case.”
I don’t know that I have a position, mainly because I’ve never had to think about it. I know that most bar counsel types believe in the idea that “public record” is not “generally known” and, therefore, is not an exception to the general prohibition against disclosure stated in Rules 1.6 & 1.9. More practically, I simply believe that it’s a good idea not to talk about a former client’s matter, even if the matter received widespread media coverage. Also, for lack of a better word, it makes me squeamish to think of a lawyer disclosing information about a former client that, while public, almost nobody else knows.
Still, I’m sensitive to the First Amendment argument. And, despite my personal opinion that one should take advantage of every single opportunity to keep one’s mouth shut, I feel like the pendulum has started to swing swung back towards the debate’s equilibrium.
So, what say you? I’m a piece of clay. Mold me. Again, here’s the scenario:
- You went through a messy divorce 10 years ago. Mike represented you. The divorce went to trial. At trial, details emerged that remain embarrassing today. Yes, the trial was public, but, really, in label only. Nobody went, certainly not the press. The details are not, by any stretch of the imagination, generally known. The only way anyone could access the details would be by going to the great length of ordering a transcript. Public? Yes. Generally known? No. Yesterday, Mike blogged about them.
Should Mike be sanctioned? Discuss in the comment section, but keep it civil. Or, take this poll.