In New Ethics Ruling On Blogging, ABA Opines Like It’s 1999

In the classic short story “Rip Van Winkle,” a man fell asleep in 1769 and awoke 20 years later, having slept through the Revolution.

One wonders whether the same is true of the authors of Formal Opinion 480, issued March 6 by the American Bar Association’s Standing Committee on Ethics and Professional Responsibility.

It tackles the ethics obligations around the “newest format” in online publishing by lawyers, blogs, as well as listservs, online articles, website postings, and “brief online statements or microblogs” such as Twitter.

It has been 20 years since the launch of the first blog by a lawyer, which was either in 1998 or 1999, depending who is credited as first. During those two decades, a revolution has occurred in how lawyers publish. This blog, Above the Law, stands as testament to that. Last month, in just 28 days, it had 1.5 million unique visitors.

Granted, the ABA has a reputation for being a bit behind the curve on technology issues. But in reading this opinion, one has the feeling that someone at the ABA found it in a desk drawer where it had been lost for a decade and decided, “What the heck, let’s publish it.”

Having now decided to weigh in on this untimely topic, what does the ABA tell us? That lawyers who blog should not, on their blogs, reveal client confidences.

Lawyers who communicate about legal topics in public commentary must comply with the Model Rules of Professional Conduct, including the Rules regarding confidentiality of information relating to the representation of a client.

I would hope that most lawyers knew that. If nothing else, we should be aware of the 2010 case of an Illinois lawyer whose law license was suspended due to her blogging about the clients she represented as a public defender, even though she never identified them by name.

But this ABA opinion takes this a step further, saying that a lawyer should never blog about a client without first obtaining the client’s informed consent.

The salient point is that when a lawyer participates in public commentary that includes client information, if the lawyer has not secured the client’s informed consent or the disclosure is not otherwise impliedly authorized to carry out the representation, then the lawyer violates Rule 1.6(a).

This holds true, the opinion says, even when the information is contained in a public record. “Rule 1.6 does not provide an exception for information that is ‘generally known’ or contained in a ‘public record.’”

In saying this, the opinion skirts around a little thing called the First Amendment, saying that lawyers’ speech may be curtailed by professional conduct rules.

Although the First Amendment to the United States Constitution guarantees individuals’ right to free speech, this right is not without bounds. Lawyers’ professional conduct may be constitutionally constrained by various professional regulatory standards as embodied in the Model Rules, or similar state analogs.

That may be true in some circumstances, but it makes no sense to say that a lawyer cannot talk about that which is already on the public record. As the Supreme Court of Virginia said in Hunter v. Virginia State Bar:

The VSB argues that it can prohibit an attorney from repeating truthful information made in a public judicial proceeding even though others can disseminate this information because an attorney repeating it could inhibit clients from freely communicating with their attorneys or because it would undermine public confidence in the legal profession. Such concerns, however, are unsupported by the evidence. To the extent that the information is aired in a public forum, privacy considerations must yield to First Amendment protections. In that respect, a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom.

And the opinion barely mentions the Supreme Court’s 1991 opinion in Gentile v. State Bar of Nevada, which recognized that attorney speech about public cases is protected by the First Amendment, but that such speech may be regulated if it poses a substantial likelihood of materially prejudicing a pending case.

The ABA’s opinion closes with this slightly cryptic conclusion:

Lawyers who blog or engage in other public commentary may not reveal information relating to a representation that is protected by Rule 1.6(a), including information contained in a public record, unless disclosure is authorized under the Model Rules.

So a lawyer may not “reveal” information that is contained in a public record. But how can someone reveal something that is already public? To reveal is to make something public that was secret.

There is no question that lawyers’ speech may be curtailed to some extent under the First Amendment. But this opinion goes too far in constraining lawyers’ public discourse about matters in which they are involved.

Over the last 20 years, blogging has brought about a revolution in how lawyers communicate and converse about developments in the law. This opinion reads as if its authors had slept through all that. Perhaps they should take their opinion back to bed and sleep on it for a few more years.