Lawyers have been advised by the American Bar Association they cannot make public comment on clients in social or print media, including blogs and Twitter, without client authorisation even when the information is already in the public domain. The ABS’s latest ethics opinion caution is needed when commenting on cases in the media. Lawyers can only disclose information when the client gives express or implied consent.

Ethics

The ethics opinion explains a lawyer’s “public commentary” implicates three ABA ethics rules: Rules 1.6 on confidentiality, 3.5 on impartiality/decorum of tribunal, and 3.6 on trial publicity. The committee said public commentary could also implicate advertising rules and create conflicts of interest, but the opinion stopped short of answering these issues. Public commentary is defined by the ethics committee as remarks made in public via online publications like tweets, blogs, podcasts, web posts, listserves, and in print media like magazines, treatises, white papers and law reviews.

Broader meaning

Rule 1.6 protections are “far broader than attorney-client privileged information,” according to the committee opinion, extending to client identity and “all information relating to the representation, whatever its source.” Information in public documents, such as a court order, are “not exempt from the lawyer’s duty of confidentiality under Model Rule 1.6,” nor exception made under Rule 1.6(a) for information “generally known.” Several bar opinions and cases are cited that similarly interpret Rule 1.6. The opinion takes a wide focus, including addressing use of hypotheticals in attempting to disguise the client, First Amendment rights are stated as “not without bounds,” and attempts to influence a judge or jury.