I’ve blogged often on the risk associated with disclosing information relating to the representation of a client. At times, I sense that lawyers think I’m exaggerating to make a point.
Earlier this week, the Legal Profession Blog posted Public Discipline For Facebook Posts That Violated Duty Of Confidentiality. The post shares this opinion from the Massachusetts Board of Bar Overseers.
Briefly, a lawyer represented Jane Doe in connection with a petition for guardianship of her grandson. Following a confidential juvenile hearing, the lawyer posted the following on his personal Facebook wall:
“I am back in the Boston office after appearing in Berkshire
Juvenile Court in Pittsfield on behalf of a grandmother who
was seeking guardianship of her six year old grandson and
was opposed by DCF yesterday. Next date-10/23.”
Two people commented.
The first asked the grounds on which DCF opposed the petition. The lawyer replied:
“GM [grandmother] will not be able to ‘control’
her daughter, the biological mother, and DCF has ‘concerns.’ Unspecific.”
The second asked if DCF preferred foster care. The lawyer replied:
“The grandson is in his fourth placement in foster care since his removal from GM [grandmother]’s residence in late July. I will discover what DCF is doing or not doing as to why DCF opposes the GM [grandmother] as guardian. More to come.”
Eventually, Jane Doe’s daughter saw the post and comments and told Jane Doe about them. Doe sent the lawyer an email in which she stated that he
“seem[ ed] to think that discussing my custody case (and who knows what else) with your Face book [sic] buddies on an open account … is okay and at the least just [a] mistake. I beg to differ. Posting client information on Face book [sic] is a violation of the attorney client law.”
The lawyer replied that he had not disclosed protected information and that his post indicated “from where I was returning and DCF’s position only.”
The MA disciplinary prosecutor charged the lawyer with violating Rule 1.6(a) of the Massachusetts Rules of Professional Conduct. With few exceptions, none of which were present, the rule states that a lawyer “shall not reveal confidential information relating to the representation of a client.”
(I emphasized confidential. Why? Because Vermont’s rule isn’t as narrow. Vermont’s rule states that a lawyer “shall not reveal information relating to the representation of a client.”)
Anyhow, the MA rules defines “confidential information” as “information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) is likely to be embarrassing or detrimental to the client if disclosed, or ( c) information that the lawyer has agreed to keep confidential.”
At the trial level, the disciplinary prosecutor argued (b). That is, that the Facebook post revealed information that was likely to be embarrassing or detrimental to Jane Doe if disclosed.
The hearing committee recommended dismissal of the disciplinary charges. Upon review, the Board of Bar Overseers characterized the committee’s decision as follows:
- “In recommending dismissal of the petition for discipline, the hearing committee
concluded that, ‘the information at issue could only be embarrassing or detrimental to Doe if it could reasonably be linked to her.’ Based on its reading of [the rule] the hearing committee concluded that, ‘there must be enough revealed to get to a certain threshold, some identifiable or linear nexus reasonably connecting the information to a particular person.’ Thus, in recommending dismissal of the petition, the hearing committee found that, ‘There is no reasonable likelihood that the client could have been recognized.'”
The Board disagreed.
First, the Board concluded that the Facebook post was “confidential” because the disclosure that Jane Doe and her grandson were involved in a DCF matter was likely be embarrassing or detrimental to Jane Doe.
Next, the Board noted it was enough that Jane Doe and her daughter had recognized the post as referring to the lawyer’s representation of Jane Doe. More specifically, the Board rejected the hearing committee’s conclusion that “there must be enough revealed to get to a certain threshold, some identifiable or linear nexus reasonably connecting the information to a particular person.” Rather, after concluding that the daughter, who was not the lawyer’s client, figured out the the post was about her mother, the Board wrote:
- “Even if there were no evidence that a third party actually recognized the client in the post, we would still conclude that the respondent had violated Rule l.6(a). There is no requirement that a third party actually connect the dots. If it would be reasonably likely that a third party could do so, the disclosure runs afoul of the rule. In addition to her daughter knowing about the case, Doe could have mentioned to a friend that the respondent was representing her in a case (perhaps in connection with making a referral). If the friend looked up the respondent on Facebook, the friend would learn about the ’grandmother’ and her litigation with DCF. There are numerous other reasonable scenarios.”
Now, I know what you’re thinking: if that’s the rule, how can I ever run anything by another lawyer who isn’t in the same office as I am? The Board’s answer:
- “In posting on Facebook, the respondent did not seek advice from other lawyers, nor can we discern any other purpose that would have served his fiduciary duty to his client. There is no legitimate analogy between seeking advice from other lawyers and the respondent’s Facebook post.”
Turning to the appropriate sanction, the Board publicly reprimanded the lawyer. While dissenting members urged a private admonition, the Board stated:
- “The post is no different than publishing the facts in a newspaper or broadcasting them on television. Furthermore, the matter discussed by the respondent here was a sensitive child custody case that our legislature has deemed to be worthy of confidential protection by statute [citation omitted]. The respondent’s conduct ignored not only the basic tenets of Rule 1.6, but the basic confidentiality requirements that all attorneys who handle these sort of child custody and protection matters should honor.”
The Board concluded:
- “Confidentiality is a central tenet of our profession. If nothing else, the public knows that attorneys are obligated to protect their confidences. This obligation exists to encourage clients to be truthful and to place great trust in their counsel. By posting information about his client on Facebook, the respondent jeopardized that trust. Public discipline is warranted.”
When it comes to disclosing information relating to the representation of a client, my thoughts remain the same. Unless required or permitted by the rule, don’t. As this case proves, “not much” can be “too much.”