Co-authored by editorial associate Lynn Lewis Kessler.
The American Bar Association (ABA), in 2018, decided it was time for the group’s Standing Committee on Ethics and Professional Responsibility to issue guidance on ethics in legal blogging and other public commentary by attorneys and law firms. ABA Formal Opinion 480: Confidentiality Obligations for Lawyer Blogging and Other Public Commentary is the result of the committee’s evaluation of the topic.
Some legal professionals and commentators feel the ABA was late to the party and missed the mark in ABA 480. However, the opinion does provide general direction and precautions related to confidentiality in legal blogging that are worthy of attention.
Constraints on Public Commentary in ABA Formal Opinion 480
ABA 480 states the following:
Lawyers who blog or engage in other public commentary may not reveal information relating to a representation, including information contained in a public record, unless authorized by a provision of the Model Rules.
The opinion specifies that the applicable Model Rules of Professional Conduct in question include Rule 1.6: Confidentiality of Information, as well as Rule 3.5: Impartiality and Decorum of the Tribunal and Rule 3.6: Trial Publicity.
“Public Commentary” as Defined in ABA Formal Opinion 480
While the title of ABA 480 specifically mentions lawyer blogging, the opinion covers a much broader range of marketing, communications, and social media ethics for lawyers. Under the term “public commentary,” the committee includes “online publications such as blogs, listservs, online articles, website postings, and brief online statements or microblogs (such as Twitter®).”
Non-text communications, such as videos, webinars, and podcasts are also included in the ABA’s definition of public commentary. And the formal opinion acknowledges that traditional forms of print media—like magazines, white papers, and law reviews—are subject to the same requirements of confidentiality as commentary posted online.
A Review of the Model Rules
The ABA’s Model Rules of Professional Conduct provide ethical guidance for attorneys and law firms. ABA Formal Opinion 480 clarifies which of the rules are applicable to the question of ethics in legal blogging and other public commentary.
Model Rule 1.6: Confidentiality of Information is extrapolated by ABA 480 to include confidentiality in legal blogging and other online content. This rule states that an attorney must maintain client confidentiality unless the client consents to the disclosure of information or another exception applies. Formal Opinion 480 notes that the exceptions specifically noted in Rule 1.6(b) are unlikely to be applicable in the situations in question.
When an attorney has a client’s informed consent to publicly discuss a legal case or situation, there are still additional concerns related to ethics in legal blogging and commentary. Model Rules 3.5 and 3.6 provide guidance on appropriate limitations of trial publicity and public statements intended to persuade judges, juries, and other involved parties. These rules must also be considered when attorneys and law firms compose and post public commentary online or otherwise.
An Attorney’s First Amendment Right to Free Speech
Apparently anticipating potential legal arguments related to the right to free speech under the First Amendment, the Standing Committee on Ethics and Professional Responsibility addressed this issue in ABA 480. The opinion states that the responsibilities of the attorney-client relationship effectively limit the rights of the attorney to free speech on issues within the confines of that relationship, and, in some scenarios, even before a relationship is established and after it has ceased.
ABA Formal Opinion 480 Addresses Ethics in Legal Blogging and Beyond
ABA 480 makes clear that lawyers should be wary of including hypothetical situations in public commentary if there is a reasonable chance that the client or case upon which the hypothetical is based could be identified. The opinion also clarifies that the requirement of confidentiality in legal blogging and commentary is not eliminated when information regarding the case has become otherwise publicly available.
The relationships of attorneys and law firms with clients are based on the trust formed by the oath of confidentiality. Technological advances and new forms of communication do not change that, but they do create more space for mistakes by legal professionals.
If you’d like help navigating confidentiality in legal blogging, social media ethics for lawyers, or other related matters, you can trust the attorney-driven team of publishing and SEO specialists at TwoDogBlog, LLC. Whether it’s applying ABA Formal Opinion 480 to your blogging practices or creating a full digital marketing strategy for your law firm, contact us today to see how we can help your firm get found online—without compromising your ethical responsibilities.