The duty of confidentiality in blogging and other public commentary

In Formal Opinion #480 the ABA Committee addressed lawyers’ obligations of confidentiality under Model Rule 1.6 when lawyers write blogs or engage in other forms of public commentary.  The committee noted that the duty of confidentiality broadly protects information  “relating to the representation of a client” regardless of its source (third parties as well as clients) and form (written, electronic, oral), unless the client gives informed consent or an exception to the duty applies.  While the Model Rules recognize a number of exceptions to the duty, these exceptions are justified by the principle of “harm prevent” and would typically not apply to public commentary by lawyers about their cases.  The committee specifically identified the following types of commentary as  subject to the duty of confidentiality: client identity, information contained in public records, generally available information (unlike Rule 1.9(c), Rule 1.6 does not contain a “generally known” exception), and hypotheticals that could reasonably be used to identify the actual clients.  The committee further pointed out that other rules might impose additional restrictions on lawyer commentary, for example Model Rule 3.6 prohibits lawyers form making extrajudicial statements that have “a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” Model Rule 3.6(a).  The rule applies even if the information contained in the statement was not subject to the duty of confidentiality.  However, the rule does have exceptions, including the “right to reply” under Model Rule 3.6(c). 

For more information: Nathan M. Crystal