When the American Bar Affiliation’s ethics panel lastly received round to issuing an opinion on lawyer running a blog in 2018 — a full twenty years after legal professionals had began running a blog — it conjured for me the picture of Rip Van Winkle, who fell asleep in 1769 and awoke 20 years later, having slept by means of the Revolution. (See, In New Ethics Ruling On Blogging, ABA Opines Like It’s 1999.)
Now, the ABA has completed itself one higher, popping out with an ethics opinion on legal professionals’ use of listservs — though legal professionals have been participating with each other on listservs for roughly 30 years. In reality, some of the fashionable lawyer-to-lawyer listservs ever, the ABA’s very personal SoloSez, began in 1996.
However the glory days of lawyer listservs are long gone. By Web requirements, listservs are leftovers from prehistoric instances. Sure, a number of nonetheless wander the panorama, however what makes this opinion so manifestly premature shouldn’t be that they’ve been round for 30 years, it’s that they’re nearing extinction. Over the previous decade, legal professionals’ use of listservs has declined dramatically, to the purpose the place lawyer-only listservs are largely confined to small specialty areas of regulation.
So why now, ABA? Why now come out with an opinion on a 30-year-old know-how that’s nearing its closing days? That, we’ll by no means know.
Conservative Strategy
Timing apart, the brand new opinion, Formal Opinion 511, issued Might 8, 2024, takes a constrictive and conservative strategy to the problem, cautioning that even a basic query concerning the regulation, resembling a request for a case on a selected matter, “might in some circumstances allow different customers to establish the shopper or the scenario concerned.”
The main focus of the opinion is on legal professionals who flip to lawyer-to-lawyer listservs to hunt assistance on a matter they’re at the moment dealing with. These kinds of inquiries have been lengthy the fodder of the Solosez group I discussed above, and of different listservs dedicated to particular areas of regulation or jurisdictions.
The moral concern right here is Mannequin Rule 1.6, which prohibits a lawyer from revealing info regarding the illustration of a shopper, except the shopper offers knowledgeable consent. That prohibition applies not solely to confidential info, however to all shopper info, together with even the shopper’s id.
With Rule 1.6 in hand, the ABA panel solutions the query categorically and maybe even heavy-handedly:
“With out the shopper’s knowledgeable consent, Rule 1.6 forbids a lawyer from posting questions or feedback regarding a illustration—even in hypothetical or summary kind—if there’s a affordable probability that the lawyer’s posts would enable a reader then or later to deduce the id of the lawyer’s shopper or the actual scenario concerned, thereby disclosing info regarding the illustration.”
In reaching that opinion, the ABA panel distinguished an opinion it issued in 1998 (ABA Formal Opinion 98-411) that discovered {that a} lawyer has implied authorization to debate a case with an out of doors lawyer in an effort to acquire recommendation concerning the case, when the lawyer moderately believes the disclosure will additional the illustration. The distinction with a listserv, the panel identified, is that the lawyer is revealing the knowledge to a bunch of legal professionals.
“Typical listserv dialogue teams embody members whose id and pursuits are unknown to legal professionals posting to them and who subsequently can’t be requested or anticipated to maintain info regarding the illustration in confidence. Certainly, a listserv submit may probably be seen by legal professionals representing one other get together in the identical matter.”
On high of that, the panel mentioned, there is no such thing as a approach for the posting lawyer to make sure that the shopper’s info won’t be additional disclosed past the listserv or used ultimately towards the shopper.
This reasoning extends even to the posting of hypotheticals, the ABA panel mentioned.
“[A] lawyer should have the shopper’s knowledgeable consent to submit a hypothetical to a listserv if, below the circumstances, the posted query may ‘moderately result in the invention of’ info regarding the illustration as a result of there’s a ‘affordable probability’ that the reader will be capable to verify the id of the shopper or the scenario concerned.”
All of that mentioned, some types of inquiries to a listserv don’t cross moral bounds, even when designed to elicit info useful to a illustration.
“In some conditions, due to the character of the lawyer’s follow, the related shopper or the scenario concerned won’t ever develop into recognized, and subsequently the lawyer’s anonymized inquiry can’t be recognized with a selected shopper or matter. In different instances, the query could also be so summary and broadly relevant that it can’t be related to a specific shopper even when others know the inquiring lawyer’s clientele.”
The opinion additionally talked about different methods wherein “cautious legal professionals” can use listservs, together with to ask for instances and articles on matters or kinds and checklists, or to ask for info on how numerous jurisdictions handle court-connected considerations.
So, given all this, simply what kind of consent is required from the shopper in an effort to submit to a listserv? Here’s what the opinion advises:
“When searching for a shopper’s knowledgeable consent to submit an inquiry on a listserv, the lawyer should ordinarily clarify to the shopper the chance that the shopper’s id in addition to related particulars concerning the matter could also be disclosed to others who don’t have any obligation to carry the knowledge in confidence and who might characterize different individuals with antagonistic pursuits. This will likely additionally embody a dialogue of dangers that the knowledge could also be broadly disseminated, resembling by means of social media.”
For legal professionals who repeatedly use listservs, they might want to search the shopper’s knowledgeable consent on the outset of the illustration, the panel says. This may very well be completed by explaining the lawyer’s intention and memorializing the shopper’s consent within the engagement settlement. “The lawyer’s preliminary clarification have to be sufficiently detailed to tell the shopper of the fabric dangers concerned,” the opinion says, including that will not all the time be doable till contemplating an precise submit.”
To my pondering, this opinion takes a very heavy-handed strategy to a difficulty it ought to have addressed, if in any respect, possibly 20 years in the past. In different phrases it’s an excessive amount of, too late.
