It is common for attorneys and law firms to use their online presence and social media networks to share legal news, market their services to prospective clients, communicate with current and former clients, network with other legal professionals, and offer opinions about legal topics to the public. As sectors of the legal profession have shifted to hybrid and remote working environments, some attorneys and firms have increasingly focused their marketing efforts in digital forums instead of in-person conferences and meetings.

The use of online social media platforms can present risks to attorneys, especially related to the duty to maintain client confidentiality. Here are some tips to help navigate the digital space.

Maintaining Client Confidentiality in Online Communications

The duty of confidentiality is one of the cornerstones of the legal profession. Indeed, Rule 1.6 of the California Rules of Professional Conduct incorporates California Business and Professions Code section 6068(e)(1), which requires attorneys “[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”

Most attorneys recognize that they cannot disclose communications protected by the attorney-client privilege to those outside the relationship. The duty of confidentiality, however, typically protects more than communications shielded by the attorney-client privilege. Comment [2] to California Rule 1.6 provides that attorneys must protect confidential information obtained “by virtue of the representation, whatever its source.” Such information can include client identity, business information, and other sensitive information. Generally, the attorney is prohibited from disclosing confidential information unless the client gives informed consent or an exception permits disclosure. Rule 1.6 calls on attorneys to protect clients’ confidential information even after the attorney-client relationship is terminated.

In 2018, the ABA’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 480, which examined the confidentiality obligations of attorneys engaged in online blogging and public commentary under Model Rule 1.6. Consistent with prior Formal Opinions issued by California’s Standing Committee on Professional Responsibility, the ABA’s opinion confirmed that attorneys must continue to adhere to the obligations imposed by the Rules of Professional Conduct when operating online. Those obligations remain regardless of the specific online medium the attorney uses, which may include social media posts, blogs or microblogs, website posts, podcasts, webinars, or other online public commentary.

Many commentators view Opinion 480 as simply reinforcing the attorney’s duty to maintain confidentiality even when communicating in a digital forum. Others, however, have been more critical of the opinion, stating that it needlessly restricts attorneys’ rights to comment on publicly available client information. Regardless of the viewpoint, the rationale underlying the opinion is rooted in the Rules of Professional Conduct, and there have been disciplinary cases around the country where attorneys have gotten into trouble for disclosing too much information online.

Information That Is Publicly Accessible

Attorneys and law firms typically take steps to protect confidential information and prevent disclosure. However, it is obviously more difficult to protect private information once it has been disclosed publicly. In other words, it is hard to “un-ring the bell.” But attorneys are generally understood to have an obligation to continue to safeguard client information, even if that information has been made public (absent client consent).

Opinion 480 also confirmed that Model Rule 1.6 requires attorneys to protect information that is otherwise “generally known” or “contained in a public record,” absent client consent or other steps. When it comes to online blogging or engaging in other public commentary, Opinion 480 observed that attorneys may not reveal information relating to a representation, including information contained in the public record, if that information is protected by Rule 1.6, unless disclosure is otherwise authorized. This view has been echoed by other entities in California. As recognized by California’s Standing Committee on Professional Responsibility and Conduct in Formal Opinion 2016-195, an attorney may have the obligation to refrain from blogging about public client information to avoid “further publiciz[ing]” it.

Accordingly, the attorney’s duty of confidentiality generally applies to information obtained by virtue of the representation, even if that information is in the public record or otherwise publicly accessible. Attorneys and law firms may therefore have obligations to refrain from online commentary, even for those client details that can be publicly confirmed from other sources, absent client consent.

Online Commentary May Not Implicate Traditional Disclosure Exceptions

Model Rule 1.6(b) provides a host of exceptions to the general prohibition on revealing confidential information. It allows attorneys to reveal confidential information to the extent necessary to prevent serious injury or death, to prevent the client from committing a crime, to defend against a claim brought by the client, or to comply with a court order. Rule 1.6(b) of the California Rules of Professional Conduct is far narrower, only recognizing an exception (absent client consent) to prevent a criminal act that the attorney believes is reasonably likely to result in death or substantial bodily harm.

Even considering Model Rule 1.6’s broader exceptions, Opinion 480 suggests that these exceptions are less likely to be at play when an attorney provides online commentary.

Hypotheticals May Present Risk

Using hypothetical situations is a common technique for attorneys posting on social media. Indeed, hypotheticals sometimes offer a way to crowdsource techniques and strategies without revealing confidential information. Attorneys, however, are not necessarily immunized by labeling commentary as a hypothetical if there is a reasonable likelihood that a third party could ascertain the identity or situation of the client from the “hypothetical” facts. Attorneys in those situations will often disguise their hypothetical well enough that a third party cannot ascertain the identity or situation of the client.