Listserv Leaks: Protecting Client Confidentiality
Lawyers often confront legal issues for which they are unable to find a clear answer in statutory or common law. When this happens, we often turn to our colleagues for guidance. We might reach out to a lawyer we know to be an expert in the given practice area. Or we might post an inquiry on one of the many listservs that are available to lawyers. Listservs can be a very valuable tool for lawyers. Everyone who participates benefits from the exchange of ideas and guidance. But lawyers using listservs must be careful not to breach client confidentiality when posting on these sites. Remember, in the absence of a client’s informed consent or one of the exceptions found in Rule 1.6(b), a lawyer must not disclose any information acquired during the professional relationship.
Presumably, every lawyer knows that it is improper to disclose a client’s identity and confidential information about the client’s matter on a listserv. Rather, the lawyer must post a hypothetical without naming the client. But what if the lawyer provides enough information about the case that it would be easy for another lawyer to figure out who the client was? The State Bar makes clear that this may be a breach of Rule 1.6.
Comment 4 to Rule 1.6 stresses the importance of shielding confidential information, including “disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person.” The comment further provides that “the use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved.”
I have seen this rule violated on listservs on numerous occasions. The lawyer did not give the client’s name but gave enough information that it would have been very easy for me to figure out who the client was. It would have been even easier for a lawyer living in the same community as the posting lawyer. I’m sure that the posting lawyer assumed that there was no problem because he had not provided the names of any of the parties. That assumption is incorrect. The standard is whether there is a reasonable likelihood that the reader/listener will be able to figure out the identify of the client.
If you are concerned that your post on a listserv might result in the disclosure of your client’s identify, there are a few things you can do. You could rewrite the post to limit the amount of information provided. Alternatively, you could change some of the facts to distract from the client’s identity. You could also simply seek your client’s informed consent. Explain to the client that you will not use their true identify but that another lawyer might be able to figure out who they are. Point out to the client that the assistance you might get from the listserv post could be helpful to their case. If the client gives consent, you have eliminated the concern of a breach.
In addition to confidentiality concerns for listservs, lawyers should also be careful when posting on social media. Many lawyers use social media to highlight positive case results. The same principles that apply to listserv posts apply to social media posts. As with listserv posts, a simple solution in the case of social media posts is to get the client’s informed consent before posting.
Whether it is a listserv inquiry, a social media post, or a conversation with a colleague, lawyers must be careful to protect a client’s identity. It is not enough to withhold the client’s name. If you don’t think you can get the assistance you need without risking disclosure of the client’s identify, ask for the client’s informed consent before posting.
