Dear Listmates...the Ethical Perils of Posting to a Lawyer Listserv (ABA Formal Opinion 511)

Listservs are wonderful things. We lawyers use them to update each other about recent decisions, statutes, and articles, share contact information for vendors, or get recommendations for practitioners in certain specialties. Listservs help us “keep abreast of changes in the law” as Model Rule of Professional Conduct 1.1, Comment 8, advises. But, new ABA Formal Opinion 511, issued May 8, 2024, warns us to be very careful in posting to lawyer listservs for fear of disclosing confidential client information in violation of Rule 1.6.

We all know that Rule of Professional Conduct 1.6 says a lawyer shall not reveal information relating to the representation of a client without the client’s informed consent. The duty to protect confidential information continues even after the attorney-client relationship ends.

Comment 3 (to both the Model and Alabama Rules) explains that Rule 1.6 protects “all information relating to the representation, whatever its source” and is not limited to communications protected by the attorney-client privilege. Even publicly available information like a transcript is protected. The identity of the client is also among the information rule 1.6 protects.

Formal Opinion 511 addressed the question whether lawyers are impliedly authorized to reveal information relating to the representation of a client – even when it is anonymized or presented as a hypothetical - by posting an inquiry or comment on a listserv.

Absent client consent after consultation, the answer is no.

The rationale is that listservs include participants whose identity and interests are unknown to the lawyers posting on the site, thus, it is impossible to expect them to keep information confidential. In fact, lawyers who are adverse in the same matter might even be on the listserv. In addition, it is usually impossible for the posting lawyer to ensure that a listserv participant won’t further share the information or use it against the client.

For these reasons, lawyers participating in listservs should not disclose information that may reasonably be connected to an identifiable client, whether they are trying to obtain information from other lawyers to benefit the legal representation of the client, replying to a request for help, trying to develop their practice for networking, or regaling their listmates with war stories.

Using hypotheticals does not solve the ethical problem if the reader is reasonably likely to be able to ascertain the identity of the client or the situation involved.

This is not to say that listservs can’t ever be used. Situations exist where the lawyer can anonymize the client and use a hypothetical, or ask a question so abstract and broadly applicable that the situation cannot be associated with a particular client. Lawyers should be very careful when forming their questions to ensure other lawyers cannot identify the client or situation. The more high-profile the client or situation, the more likely it is that others can infer the client’s identity.

If the lawyer cannot pose a question in a way that will protect against discovery of information relating to the representation, there are two alternatives – don’t do it, or get the client’s informed consent. One way to memorialize the client’s agreement to use a listserv for the benefit of the representation is to explain the pros and cons in the engagement letter. However, it is not always possible to anticipate the need to post in time to provide sufficient detail in the engagement letter. When obtaining informed consent, make sure to communicate adequate information about the risks and benefits of posting so the client can understand the material risks involved.