Disclosing Information that is Public Record

Regular readers know that I’ve often blogged on the distinction between information that is “generally known”and information that is “public record.”  For further reading, please see:

Last week, I posted a blog that looked at the other side of the coin.  That is, the side that believes that the First Amendment prohibits a state from sanctioning a lawyer who discloses information that is public record.  The post is here.   In it, I linked to a poll.

The post generated more than 300 views.  However, fewer than 10 people took the poll. Nearly as many complained that the post was too long.  It makes me laugh out loud – literally – that someone takes the time to send me an email complaining that a blog post that they chose to visit is too long.

While few took the poll, several sent me substantive comments.  Also, Jim McCauley, left a comment on the post itself.

Of the comments sent to me, the one that resonated most came from a reader who isn’t a lawyer.  Here it is:

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Layman’s view here…free opinion so you know what it’s worth.  In my view if it’s in the public record, it’s public.  It’s fair game.  It’s within the rules to comment on it as you will.  

It’s ethical.

But that’s not what we come to your blog for Mr. Kennedy.  We come to your blog to discuss the Rules for Professional Responsibility.  And it is my opinion that it is neither professional nor is it responsible for an attorney to blog, comment, write about, or discuss the specific affairs of a former or current client regardless of whether the information is in the public record or not.  

When a client hires an attorney they expect, reasonably or not, that that attorney will be loyal, above and beyond all. Disputes are often fraught with deep emotion.  Having your own attorney air your linen out in the public square, regardless of the result of the court process, breaches this expectation and undermines the high regard in which most attorneys are held. 

There are a few situations where something that is within the rules just shouldn’t be done.  This is one. 

Which brings me to another point:  The rules represent not the pinnacle but the bottom floor for professional conduct.  The minimum standard.  What you’re supposed to be doing anyway.   

I defer for illustration to a comedy piece by Chris Rock here.  Paraphrasing, Rock says he’s tired of people taking credit for things they are supposed to be doing anyway.  Phrases like “I pay my child support” or “I”ve never been in jail”, don’t impress him.  “You’re supposed to be paying your child support”!”  “You’re not supposed to be in jail”.  “You don’t get any extra credit for that!”.  

He says it much better than I write it here but the principle is the same. 

It’s up to lawyers not to do the minimum; meet the bottom standards.  They should be aspiring to surpass them.  That’s responsible.  That’s professional.    
 

Just my 2 cents.

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I don’t know that I’ll blog much more on this topic.  I’ve laid out the arguments. Fortunately, it’s rare that the PRP receives a complaint that alleges an unauthorized disclosure confidential information. In fact, I can’t even remember the last.  That’s a good thing.

Returning to the hypo I posted a while back, I don’t know whether the Vermont Supreme Court would conclude that the 1st Amendment prohibits sanctioning my attorney for disclosing information from my 2006 divorce that, while public record, is not generally known. However, I know that it’d bother me to no end to learn that my attorney had posted a blog with the embarrassing details of my case.

Now, I know what you’re thinking, and it’s not anything to do with Rule 1.6, Rule 1.9, or the 1st Amendment.  Nope.  You’re thinking “wait, Mike got divorced in 2006?”

Heeding my own advice, I intend to take full advantage of this opportunity to say nothing at all.

 

Be Quiet

 

 

 

One thought on “Disclosing Information that is Public Record

  1. Good blog, as usual. I like this excerpt from it and wish to address the irony of its application in real life;

    “It’s up to lawyers not to do the minimum; meet the bottom standards. They should be aspiring to surpass them. That’s responsible. That’s professional. ”

    There’s an interesting presentation of how attorneys who practice higher standards get treated by the legal system. It’s a book called “Bad Minds, High Places” and was actually reviewed in last spring’s Vermont Bar Journal.

    Like

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