Ethics Question of the Month - December 2019
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Lawyer A, Lawyer B, and Lawyer C are all members of a closed group on a social media site open only to Texas lawyers. Judges are not permitted to join. The site allows attorneys to connect with one another, to privately seek guidance and advice from other attorneys, and to exchange ideas and information.
On a recent day, these three lawyers each posted a message to the group:
Lawyer A: “I am a family law attorney and I represent a father in a divorce matter. My client struggled with alcohol and drug addiction for many years, but successfully completed treatment about a year ago. I’ve represented in court filings that he’s clean and sober and is no risk to the children. I learned today, however, that he has suffered a relapse. Do I need to disclose this to the court or opposing counsel? Can I continue to claim that he is sober? The case is in Dallas County, if that makes a difference.”
Lawyer B: “I have a niche practice in a highly-specialized area of the law, and I’ve just been retained by a major airline based near my office. I’ve never dealt with a large legal department like this before. Any advice from someone who has experience representing airline clients and dealing with their in-house lawyers?”
Lawyer C: “I represent a local car dealership in their efforts to relocate and expand the business. Yesterday, my client’s owner was privately approached by the owner of the property next door to see if she was interested in purchasing it. The only catch is the seller wants to close quickly or he will be forced to put it on the open market. My client is eager to purchase. Can anyone give me some guidance on drafting the purchase documents to protect my client against any environmental problems with the property?
Assuming that none of the lawyers’ clients have authorized or approved of these posts, do any of them violate the ethics rules?
A. All of them do, because all three attorneys reveal details protected by the attorney/client privilege or attorney confidentiality.
B. Lawyer A does because the details he discloses are highly damaging to his client, but Lawyers B and C do not.
C. Lawyer B does not because she does not disclose any details about the nature of the representation, but Lawyers A and C do.
D. Lawyer B does; Lawyer A does not; we need more information about Lawyer C to determine whether he violated the rules.
E. None of them do, because none discloses their clients’ identities.
Attorneys frequently discuss current and past cases with one another in informal settings and now in online settings. The common wisdom is that discussing cases and seeking advice from other lawyers is an important way for lawyers to represent their clients effectively and efficiently. Most CLE programs involve speakers using their past experience to teach law to other attorneys.
So what are the appropriate parameters of these disclosures? The primary consideration is the restrictions set forth by Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct. It provides:
(a) Confidential information includes both privileged information and unprivileged client information. Privileged information refers to the information of a client protected by the lawyer-client privilege of Rule 5.03 of the Texas Rules of Evidence or of Rule 5.03 of the Texas Rules of Criminal Evidence or by the principles of attorney-client privilege governed by Rule 5.01 of the Federal Rules of Evidence for United States Courts and Magistrates. Unprivileged client information means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.
(b) Except as permitted by paragraphs (c) and (d), or as required by paragraphs (e), and (f), a lawyer shall not knowingly:
- (1) Reveal confidential information of a client or a former client to:
- (i) a person that the client has instructed is not to receive the information; or
- (ii) anyone else, other than the client, the clients representatives, or the members, associates, or employees of the lawyers law firm.
Attorneys must ensure that their online discussions do not reveal any confidential client information. With respect to sharing information regarding past or existing clients online, the Committee on Professional Ethics considered this specific question in Ethics Opinion No.673 and concluded that “[t]he Texas Disciplinary Rules of Professional Conduct do not categorically prohibit informal lawyer-to-lawyer consultation for the benefit of a client” when communicating in an online discussion group. The Opinion states:
It is the opinion of the Committee that Rules 1.05(d)(1) and (2) allow a lawyer to reveal a limited amount of unprivileged confidential information to lawyers outside the inquiring lawyer’s law firm, without the client’s express consent, when the inquiring lawyer reasonably believes that the revelation will further the representation by obtaining the responding lawyers’ experience or expertise for the benefit of the client, and when it is not reasonably foreseeable that revelation will prejudice the client.
Where does that leave our three attorneys? All the communications seem reasonably calculated to help the lawyers better represent their clients, but each requires a different analysis:
Lawyer A revealed some very personal and damaging details, but did not tie it back to a specific client. Did he reveal enough that someone could figure out who his client is? Probably not. We know that Lawyer A is a family law attorney in Dallas County, where there are a large number of family law attorneys. The details he shares are not publicly known and are very common in divorce cases. Based on this description, the client’s identity is likely not knowable.
Lawyer B revealed no confidential details, except for the fact that she made it pretty obvious who her client was. There are two “major” airlines headquartered in Texas, but narrowing the possibilities down to two is not sufficient to protect the client’s identity. Furthermore, depending on her “niche” expertise, the nature of her practice could reveal compromising details. For example, assume that her practice is related to assisting companies with crisis management. Disclosing that a publicly-traded company has a public relations problem is far too prejudicial to the client to discuss in a public forum. Reporters could easily use that information to chase down that lead and uncover confidential client information as well as the client’s identity. Client identity should never be revealed without the client’s permission.
Lawyer C presents a more difficult case. The need for confidentiality here is clear, but can the client’s identity – and therefore the purchase opportunity – be identified? The answer may depend on where the attorney practices. Metropolitan areas like Dallas/Fort Worth or Greater Houston may have hundreds of car dealerships, making it nearly impossible to identify this particular dealership. Smaller towns, however, may only have a handful of dealerships, making identification of the client potentially much easier. Without knowing where Lawyer C practices, we may not be able to determine his ethical obligations. Generally, though, the lawyer’s social media profile will provide his practice location or it will be discernible from the lawyer’s name or other information.
Attorneys should be very careful that any disclosure of Rule 1.05 confidential information cannot reasonably be used to identify the client. Here, context matters a great deal. Lawyers sharing information in public online forums should think through all the pertinent details carefully before typing, and they should be alert to whether an opposing counsel might also be a member of the social media site such that a stray specific detail might tip off an opponent to a key admission or confidential fact.