Lawyers’ online presence can provide an avenue to share knowledge, opinions, experiences and news. Whether to build a reputation in the community or expand the firm’s brand recognition, many lawyers publish their accomplishments on social media, in a blog and/or on the firm’s website.

Even though touting one’s accomplishments is fairly commonplace, lawyers are well served by considering their unique ethical obligations, which typically continue beyond the resolution of the legal matter in question.

As illustrated by a recent case, lawyers boasting about their matters online is not without risk that can injure both the client and lawyer. Here are some tips and guidance for lawyers to consider before making public statements about their successes.

Celebrations Gone Wrong

These ethical issues came to a head in a recent medical malpractice case in California where the estate of a deceased patient sued a doctor for negligence. After trial, the jury concluded the doctor was not responsible for the patient’s death and absolved the doctor of any liability.

On the heels of that victory, the doctor’s lawyer celebrated with other members of his law firm. During the celebrations, the lawyer was recorded making statements that implied that the client was probably negligent, contrary to the jury’s verdict. The law firm briefly posted video of the remarks on the firm’s social media page before taking it down.

But the damage had already been done. The judge presiding over the trial became aware of the statements. Following a hearing, the court vacated the defense verdict and ordered a new trial because, among other reasons, the attorney’s statements seemed “like an admission of negligence,” as well as a concession that “plaintiff should have prevailed.”

As a result of those statements, the court tossed out the favorable verdict—requiring the client to face a second trial (and potentially be compelled to defend against a harmful admission by his counsel).

It remains to be seen how the case will ultimately play out in court—either in the second trial or on appeal—but the situation provides a good reminder for lawyers to remain diligent in adhering to ethical obligations to the client, even in moments of jubilation.

Confidentiality Is the Foundation of the Lawyer-Client Relationship

Among the most critical principles governing the attorney-client relationship are the duties to maintain confidences and adhere to the attorney-client privilege. Protecting confidential and privileged information is a reflection of the public policy interest in encouraging a full exchange of information between lawyer and client.

The duty of confidentiality is generally more encompassing than privilege and requires lawyers to make reasonable efforts to prevent inadvertent or unauthorized disclosure of confidential information.

A lawyer who suggests that they achieved a verdict contrary to facts supporting liability could be viewed as having betrayed those confidences by disclosing information protected by the duty of confidentiality or the attorney-client privilege. Thus, in addition to creating risk for the client’s liability, such commentary could also run afoul of the rules of professional conduct.

Limits on Public Puffery

It is well settled that the rules generally do not permit lawyers to publish confidential client information online without proper authorization from the client. In Formal Opinion 480, the American Bar Association emphasized that lawyers must comply with their duty of confidentiality in making such statements.

Even if previously contained in the public record (such as a court order or opinion), client information is typically not exempt from the lawyer’s duty of confidentiality under Rule 1.6. For this reason, the formal opinion cautioned that a lawyer who engages in public commentary that includes client information must obtain informed written consent from the client or otherwise be impliedly authorized by the rules to make such statements.

Even when a lawyer obtains such consent or has such authorization to speak publicly about a client matter, the lawyer may wish to consider other ethical obligations such as those relating to trial publicity.

For example, ABA Model Rule of Professional Conduct 3.6(a) generally prohibits a lawyer from making an extrajudicial statement that the lawyer “knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” In addition, engaging in such public commentary may also risk running afoul of other rules governing lawyer advertising and the impartiality and decorum of the tribunal.

Another consideration is whether the lawyer’s firm has a media policy addressing when lawyers can post publicly about a legal matter and the content that may be included. Such policies should be followed to further mitigate any risk to the lawyer as well as the firm.

Duty of Loyalty and Risks of Agency

Lawyers owe a duty of loyalty to their clients. Lawyers may be at risk of breaching that duty if they take unilateral steps that could potentially harm or otherwise be adverse to their clients’ interests, especially if that conduct is not authorized by the client or the rules. Thus, lawyers can consider whether their public statements about a representation suggest that they are not being loyal to the client.

Generally speaking, lawyers are considered to be agents of their clients. A lawyer’s statements may bind the client. Thus, there is a risk that a statement by an attorney, even if puffery, could be treated as an admission by a party as to liability or another important issue.

For these reasons, lawyers should consider these obligations and risks before making any public statements on a client matter.

Shari L. Klevens is a partner at Dentons and serves on the firm’s U.S. board of directors. She represents and advises lawyers and insurers on complex claims and is co-chair of Dentons’ global insurance sector team. 

Alanna Clair is a partner at the firm and focuses on professional liability defense. 

Klevens and Clair are co-authors of “District of Columbia Legal Malpractice Law,” “Georgia Legal Malpractice Law,” and “The Lawyer’s Handbook: Ethics Compliance and Claim Avoidance.”