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

Client confidentiality and social media


By LARRY DOYLE

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 lawyers professional
website and is subject to the same ethical obligations and standards.

The ethical standard most at risk of being violated probably is the attorneys 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.

Californias 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 clients 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, its 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
attorneys website requires the clients 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

Californias 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 didnt 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 clients 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 clients consent or violate the attorneys duty of loyalty to the former client,
and it must be proportionate and restrained, Dilworth wrote.

An attorneys 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
clients 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 Hunters 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 clients 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 OConnor 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 attorneys 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 attorneys 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 Bars 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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