Negative Online Review? How not to respond.

Whether here or at CLEs, I’ve often mentioned the perils of responding to a former client’s negative online review. As reported by the ABA Journal and Legal Profession Blog, here’s another example of what not to do.

Last week, the New Jersey Supreme Court suspended a lawyer for 1-year for violating several rules, including the Garden State’s rule that prohibits a lawyer from using information relating to the representation to a former client’s disadvantage unless the information has become “generally known.”  The underlying decision of the Disciplinary Review Board is here.

Now, the sanction resulted from multiple violations committed while representing multiple clients. In other words, the lawyer’s response to the negative online review wasn’t the sole basis for the 1-year suspension.  Still, the opinion serves as important reminder that, whether you agree with the rule or the interpretation thereof, it is well-established that information that is “public record” is not necessarily “generally known.”

Before I share the facts of the NJ case, let’s look at Vermont’s rule. It’s V.R.Pr.C. 1.9(c)(1):

“(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the former client except as these rules would permit or require with respect to a client, or when the information has become generally known.”  (emphasis added).

As reported by the ABA Journal, the New Jersey lawyer “had won unsupervised visitation for the client after she took her children to another state without authorization, ‘seemingly, a good result,’ according to the review board.”  Nevertheless, the client posted a negative online review regarding the lawyer’s services.

The client owns a massage therapy business.  Miffed at the review the client had left for him, the lawyer posted the following Yelp review of the client’s business:

  • “Well, [client] is a convicted felon for fleeing the state with children. A wonderful parent. Additionally, she has been convicted of shoplifting from a supermarket. Hide your wallets well during a massage. Oops, almost forgot about the DWI conviction. Well, maybe a couple of beers during the massage would be nice.”

In response to the subsequent ethics complaint, the lawyer wrote:

  • “As to the Yelp rating about [client’s] massage therapy business, I admit to same. I was very upset by [her] Yelp rating of my practice. This rating was made more
    than a year and a half after the conclusion of my representation. My disclosures, i.e. her arrests, were public information and I did not violate attorney client
    privilege. My position was that what was good for the goose was good for the gander. I do concede that I do not believe that the rating was my finest moment.
    However, it was not unethical. That posting has subsequently been taken down.”

Long story short, the Disciplinary Review Board disagreed that it wasn’t a violation.  Citing to ABA Formal Opinion 479 and a few court decisions, the Board concluded that the lawyer’s review of the former client’s business violated the rules because the information, “although publicly available, was not generally known.”

As I’ve said before, and as my dad told me as a kid, when it comes to client confidences, lawyers would be well-served to remember this quote:

“You will have many opportunities
to keep your mouth shut.
You should take advantage
of every one of them.”
Thomas Edison

Be Quiet

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Facebook Post Leads to Public Reprimand

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.

I’m not.

Earlier this week, the Legal Profession Blog posted Public Discipline For Facebook Posts That Violated Duty Of ConfidentialityThe 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.”

Shhh

 Related Posts:

Client alleges you did wrong? Still, don’t talk too much.

When it comes to client confidences, I think lawyers would be well served to remember lessons imparted by Run-DMC: it’s not tricky, don’t talk too much.

Information relating to the representation of a client, no matter the source, is confidential.  Per Rule 1.6, such information can only be disclosed if:

  • the client gives informed consent to the disclosure;
  • disclosure is impliedly authorized to carry out the representation;
  • disclosure is required by Rule 1.6(b); or,
  • disclosure is permitted by Rule 1.6(c).

Today, I want to look at one of the instances in which paragraph (c) permits disclosure of otherwise confidential information.  I’m going to refer to (1) an ineffective assistance of counsel claim made by a criminal defendant against a defense attorney; and, (2) an ABA advisory opinion on the extent to which Rule 1.6 applies to claims of ineffective assistance.

Don’t tune out simply because you don’t do criminal defense.  There’s a larger point: the mere fact that the client alleges that you did something wrong does not give you license to disclose anything and everything that the client ever shared with you.

Rule 1.6(c)(3) permits (but does not require) a lawyer to reveal information relating to the representation if the lawyer reasonably believes that disclosure is necessary:

  • to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client;
  • to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved; or,
  • to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

Per Comment [14], if a lawyer reasonably believes that (c)(3) permits disclosure, disclosure is nonetheless limited to “the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes specified.”  It continues:

  • “[D]isclosure adverse to the client’s interest should be no greater than the lawyer reasonably believes necessary to accomplish the purpose.  If the disclosure is made in connection with a judicial proceeding, the disclosure should be made in a manner that limits access to the information to the tribunal or other persons having a need to know it and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable.”

In simple terms, do what you advise your clients to do in depositions and on the witness stand: listen to the question and answer only the question.   Actually, a federal magistrate recently stated it far more succinctly.

Yesterday, I came across this post in the ABA Journal.  The opening paragraph:

  • “A federal magistrate judge has ordered a West Virginia lawyer accused of ineffective assistance of counsel to respond to his one-time client’s allegations in a way that limits disclosure of confidential information.”

The magistrate’s opinion is here.  The analysis includes reference to Rule 1.6 and ABA Formal Opinion 10-456.  The magistrate’s succinct conclusion:

  • “Simply put, the filing of an ineffective assistance of counsel claim does not operate as an unfettered waiver of all privileged communications.”

I’ll stop there otherwise I risk sudden onset of carpal tunnel syndrome.

Suffice to say, even when a client puts your representation into issue, don’t talk too much.

After all, who wants to be this guy? (80’s lyrics are the best!)

“Everywhere that you go, no matter where you at
I said you talk about this, and you talk about that
When the cat took your tongue, I say you took it right back
Your mouth is so big, one bite would kill a Big Mac.”

~ Run-DMC, “You Talk Too Much,” King of Rock, Track 3, 1985.

Image result for run dmc talk too much images

Related Posts

Monday Morning Answers: #119

Welcome to Monday!

Friday’s questions are here.  The answers follow today’s honor roll.

Honor Roll

Answers

Question 1

Lawyer used to represent Client.   Per the Rules of Professional Conduct, which situation is different from the others?

  • A.  Client files disciplinary complaint against Lawyer.
  • B.  Client sues Lawyer for malpractice.
  • C.  Client posts negative online review about Lawyer.
  • D.  Client files petition for post-conviction relief alleging that Lawyer failed to provide effective assistance of counsel.

Rule 1.6(c)(3) permits but does not require lawyers to disclose otherwise confidential information “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client . . . [or] to respond to allegations in any proceeding concerning the lawyer’s representation of the client.” Per Comment [12], the rule can “arise in a civil, criminal, disciplinary, or other proceeding.”

A, B, and D are “controversies” or “proceedings” that trigger the rule. At the end of this post you’ll see a digest of cases & opinions that make clear that a negative online review is not a “controversy” or “proceeding” for the purposes of the rule.  

Caveat: any disclosure made pursuant to the rule should be limited to respond only to the specific controversy or allegation, and, if made in court, should include reasonable efforts to limit access to the information to people who need to know. Comment [14].

Finally, as noted by ABA Formal Opinion 10-456, a criminal defense lawyer should raise, or give the former client an opportunity to raise, all non-frivolous arguments against waiving the attorney-client privilege.

Question 2

Lawyer called me with an inquiry. I listened, then replied:  “I disagree. I wouldn’t call without permission. The rule applies to ‘matters’  Litigation doesn’t have to be pending for there to be a ‘matter.’ ”

What rule? (the topic of the rule is fine)

Communicating with a represented person.  See, Rule 4.2.

Question 3

Per the rule, an attorney shall not “prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless __________”

  • A.    The attorney or recipient is related to the client.  Rule 1.8(c)Comment [7] suggests that a non-relative cannot waive the protection of this rule.
  • B.     The client gives informed consent
  • C.     The client gives informed consent, confirmed in writing
  • D.    The client is given a reasonable opportunity to seek independent legal advice

Question 4

If you go to one of my seminars and hear me babbling about stuff that’s “onsite, online, and air-gap,” it’s most likely that I’m talking about:

  • A.  Trust accounting software
  • B.  The duty to safeguard electronically stored client information.  See: Ransomware & Cybersecurity Insurance
  • C.  Software that assists with conflict checks
  • D.  The duty of competence insofar as it relates to online legal research

Question 5

Speaking of frivolous claims . . .

Lionel Hutz is a fictional lawyer.  On behalf of a client, he sued The Frying Dutchman restaurant over its “All You Can Eat” offer.  Hutz referred to the offer as “the most blatant case of fraudulent advertising since my suit against the film The Never Ending Story.”

In another episode, the same client retains Hutz as a result of Hutz’s slogan “Cases won in 30 minutes or your pizza is free.”  Thinking he lost the case, Hutz gave the client and the client’s family a box of pizza.  The client’s wife pointed out that they won the case. Hutz responded that the pizza box was empty anyway.

How’d Hutz get a law license? I don’t know. But I do know that he claimed “I’ve attended Harvard, Yale, MIT, Oxford, the Sorbonne, and the Louvre.”

You might know the actor who voiced Hutz better for his roles on Saturday Night Liveand NewsRadio.

Name the client.

Homer Simpson

See the source image

 

Can a lawyer be sanctioned for revealing information that’s a matter of public record?

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:

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.”

************************************************************************************

“On that point, the opinion is not without criticism.  Check out the post from Above The Law.   Among other things, the author, Robert Ambrogi, writes:

  • “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.”

Josh runs a blog called Socially Awkward.  He posted a much more detailed response there. You can read it here.

Keith Lee has a blog at Associate’s Mind.  In response to Josh’s post, Keith tweeted a quote from the Hunter decision:

 

Lee Tweet

Michael Cicchini is a lawyer in Wisconsin.  In 2015, the Vermont Law Review published his article On The Absurdity Of Rule 1.9.  Here’s an excerpt:

“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.

Be Quiet

 

 

 

 

ABA & Client Confidences: It’s Deja Vu All Over Again.

Last December, I blogged on ABA Formal Opinion 479.  It’s an advisory opinion in which the ABA’s Standing Committee on Ethics and Professional Responsibility stressed that lawyers should not assume that they are free to disclose client information merely because the information is in a public record.

That’s a point that I made in my post Hey Lawyers! STFU!

To bring you up to speed, here’s the analysis with respect to current and former clients:

Current Clients

  • Rule 1.6(a) states that a lawyer “shall not reveal” information relating to the representation of a client unless (1) disclosure is impliedly necessary to carry out the representation; (2) the client consents to disclosure; or (3) one of the exceptions in paragraphs (b) & (c) is met.
  • Notably, “it’s public record” is not one of the exceptions in paragraphs (b) & (c).

Former Clients

  • Rule 1.9(c)(1) prohibits a lawyer from using information relating to the representation of a former client to the former client’s disadvantage unless the information is generally known.  The fact that something is public record does not mean that it is generally known.
  • Rule 1.9(c)(2) states that a lawyer “shall not thereafter reveal” information relating to the representation of a former client except as the rules otherwise authorize or permit. Nothing in the rules authorizes a lawyer to reveal information merely because the information is in a public record.

On March 6, the ABA released advisory opinion 480.  The opinion purports to address the duty of confidentiality as it applies to lawyers who blog.  The ABA Journal and Above The Law reported on the opinion.   In addition, Trisha Rich and Allison Martin Rhodes, law partners at Holland & Knight, blogged on the opinion here.

The opinion strikes me as a bit odd.

First, for an opinion that purports to address lawyers who blog, it really doesn’t.  Indeed, parts of the opinion come off as, how shall I say it, “less than tech savvy.”  For example, the opinion refers to Twitter accounts as a “microblogs . . . that ‘followers’ (people who subscribe to a writer’s online musings) read.”

Twitter is more than a place to read online musings.  Per the Pew Research Center’s latest numbers, 24% of U.S. adults use Twitter, and 46% of those who do visit Twitter every day.  Speaking only for myself, Twitter is where I get my news. I don’t go for “musings.”  I doubt so many Americans do either.

Next, as Attorneys Rich and Rhodes point out,

  • “The unusual thing about the latest opinion, though, is that it breaks very little new ground. The main point of the opinion is simply to reinforce to lawyers that their obligations of confidentiality always apply, even where a lawyer is communicating electronically.”

Indeed, the opinion makes me wonder why someone asked for it.  I mean, really.

As many of you know, whether by following this blog or attending my CLE presentations, I often urge lawyers not to fear tech.  Tech doesn’t require new rules. It’s simply a new forum in which the same old rules apply.  For example, many of the questions you should ask a potential cloud storage vendor are remarkably similar to the questions you’d want answered before renting a unit at the Store-All facility out on the Old County Road.

More specifically, would you have needed an advisory opinion to tell you not to reveal client confidences in op-ed pieces for your local paper? I doubt it.  Then why would you need an advisory opinion on whether it’s okay to reveal client confidences in a blog post?

Again, as Rules 1.6 and 1.9 make clear, unless one of the exceptions is met, IT IS NEVER OK TO REVEAL CLIENT CONFIDENCES.

Anyhow, the opinion isn’t entirely a restatement of the obvious. It includes a helpful tip on a pet peeve of mine.

At many of my seminars, lawyers pose “hypotheticals.”  Some are so detailed that I’d guess that half the audience knows who the lawyer is talking about.

Remember, “but I was at a CLE & said it was a ‘hypo’!” is not one of the exceptions listed in Rule 1.6.  Indeed, as the most recent ABA opinion reminds us:

  • “A violation of Rule 1.6(a) is not avoided by describing public commentary as a
    ‘hypothetical’ if there is a reasonable likelihood that a third party may ascertain the identity or situation of the client from the facts set forth in the hypothetical. Hence, if a lawyer uses a hypothetical when offering public commentary, the hypothetical should be constructed so that there is no such likelihood.”

Finally, as I alluded to above, the opinion reinforces the notion that “it’s public record” is not license to reveal information. On that point, the opinion is not without criticism.  Check out the post from Above The Law.   Among other things, the author, Robert Ambrogi, writes:

  • “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?

In any event, from a practical standpoint, in law & life, I think it’s often best to heed the words of Thomas Edison:

“You will have many opportunities
to keep your mouth shut.
You should take advantage
of every one of them.”

 

Be Quiet

Hey Lawyers! STFU!!!

So, for those of you still adjusting to the interwebs, that headline is what we call “clickbait.”

And here you are.  Keepers, I hope.

But, seriously lawyers, shut up!

I’m talking about client confidences and the duty not to reveal “information relating to the representation” of a client.

The rule is Rule 1.6. For those of you averse to clicking on the hyperlink due to my repeated warnings about scams inviting you to do so, I applaud the effort, but frown upon your tech competence. Anyhow, here’s the language you need to remember:

  • “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation, or the disclosure is required by paragraph (b) or is permitted by paragraph (c).”

Let’s look at it a bit differently.  Per the rule, a lawyer may “reveal information relating to the representation of a client” if:

  • the client gives informed consent to disclosure; or,
  • disclosure is impliedly authorized to carry out the representation; or,
  • disclosure is required by paragraph (b); or,
  • disclosure is permitted by paragraph (c).

Now, please click on this and review paragraphs (a), (b), and (c).  As you do, I want you to think of, and be prepared to tell me, the two things that you will raise as defenses to a disciplinary complaint and that I will tell you DO NOT APPEAR in either paragraph.

Are you ready?

Here they are:

  1. But Mike, the information I revealed wasn’t privileged.
  2. But Mike, the information I revealed is a matter of public record.

My responses:

  1.  Did you read the rule? It says that you “shall not reveal information relating to the representation of a client unless the client gives informed consent [or] the disclosure is impliedly authorized to carry out the representation . . . ”  As made clear by Comment [3], the duty not to reveal “information relating to the representation” encompasses far more information than is covered by the attorney-client privilege. It encompasses “all information relating to the representation, whatever its source.” (emphasis added)
  2. Where in paragraph (a), (b), or (c) does it say that a lawyer may reveal “information that is public record?”  Hint – you don’t need to go back and look.  The answer is “nowhere.”  In other words, “it’s public record” is not the same as:
  • the client providing informed consent; or,
  • information that is impliedly authorized to be revealed in order to carry out the representation; or,
  • one of the disclosures mandated by paragraph (b); or,
  • one of the disclosures permitted by paragraph (c),

Rather, it remains “information relating to the representation” that a lawyer “shall not reveal.”

Lawyers seem to get hung-up on the “public record” thing.  No need to get hung-up.  As I just said, the rule makes it very, very clear: “it’s public record” is not one of the exceptions to “a lawyer shall not reveal information relating to the representation.”

Of course, this almost never comes up with “current clients.” In my experience, lawyers seem to think that they can disclose information relating to the representation of a former client if the information is in the public record.

Nope.

Please look at Rule 1.9(c)(2).

Still click averse? Fine.

  • “A lawyer who has formerly represented a client in a matter . . . shall not reveal information relating to the representation except as these rules would permit or require, or when the information has become generally known.”

The rules do not require or permit lawyer to reveal information merely because it has become a matter of public record.  Further, the fact that information is “public record” does not necessarily mean that it has become “generally known.”  There is plenty of authority for the proposition that “public record” does not equal “has become generally known.” I’ve listed a few cases at the end of this post.  For now, I’ll start with this:

Vermont’s Rule 1.6 is derived from ABA Model Rule 1.6.  The model rule expresses “the basic principle of professional ethics that all information `relating to’ a lawyer’s professional relationship with a client is presumptively confidential and must not be disclosed unless an exception applies.”  1 Hazard & Hodes, The Law of Lawyering (3d Ed.2001) 9-52, Section 9.15.

Or, think about it this way:

  1. 25 years ago, you represented me in a divorce. The case went to a trial and the evidence, including my own testimony, established that I had an affair.
  2. Now, in 2017, I’m running for public office, or, applying for a job and I listed you as a reference.  You tell a voter or my prospective employer “i’d never support someone who had an affair.”

Good luck with your “but it’s in the public record!” defense to my ethics complaint.

I’ve mellowed since I typed the headline.  So, I’ll conclude with this:

“Hey Lawyers! Be Quiet.”

But . . .

STFU

UPDATE – OCTOBER 5, 2017 

A few cites:

Most recently, take a look at, Dougherty v. Pepper Hamilton LLP, 133 A.3d  792 (2016), 2016 PA Super 23.  A thorough and relevant analysis begins on page 798. The court quotes the Restatement 3d, which includes the following language: “the fact that information has become known to some others does not deprive it of protection if it has not become generally known in the relevant sector of the public.”  Restatement (Third) of the Law Governing Lawyers § 59, cmt. d.

Akron Bar Ass’n v. Holder, 102 Ohio St. 3d 307 (2004). The case was decided under the Ohio rule that prohibited the disclosure of a client’s “confidendences & secrets.”  Some of you might remember that “confidences & secrets” are what we were required to keep confidential when Vermont followed the Code. We switched to the Rules in 1999.  In any event, after noting that its standard was “less encompassing than that in [ABA] Model Rule 1.6(a),” the Ohio court stated that “[t\here being an ethical duty to maintain client secrets available from sources other than the client, it follows that an attorney is not free to disclose embarrassing or harmful features of a client’s life just because they are documented in public records or the attorney learned of them in some other way.” 102 Ohio St. 3d (306, paragraphs 38-39). Again, the Ohio rule is encompasses less than the rule on which Vermont’s rule is based.

Here’s another: Lawyer Disciplinary Board v.McGraw, 461 S.E.2d 850 (W.Va. 1995).  The Moutaineer Supreme Court stated that “[t]he ethical duty of confidentiality is not nullified by the fact that the information is part of a public record or by the fact that someone else is privy to it.” Id. at 861-862.

Finally, I concede that the Restatement is not as restrictive as my take in the blog post.  Here’s more language from the Restatement:

  • Whether information is generally known depends on all circumstances relevant in obtaining the information. Information contained in books or records in public libraries, public-record depositaries such as government offices, or in publicly accessible electronic-data storage is generally known if the particular information is obtainable through publicly available indexes and similar methods of access. 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.”

Still, as a lawyer, I’d be wary.  Arguably, “special knowledge” includes “I’m the only person who knows or remembers that there’s something in the public record about my former client.”