When Social Media and Confidentiality Collide
It’s almost always a bad idea to talk about your clients on social media.
This is so even if the case is over and representation has ended. And it doesn’t matter if you’re commenting on something that is online and widely available in the public realm.
When it comes to client matters, mum’s the word. Period.
“Of course, matters subject to attorney-client privilege cannot not be revealed, but unprivileged information obtained in the course of representing clients is also confidential,” writes Jett Hanna of the Texas Lawyers Insurance Bar Exchange.
California and Online Confidentiality
Hanna’s article was inspired by this proposed ethics opinion from California. In it, the California State Bar was asked to rule on the propriety of discussing client information on social media:
- In one scenario, a lawyer comes across a blog post that mentions a current client. The discussion relates to the subject of the representation. Even though the information is public, the lawyer may not share the link with others, the bar said.
- In another scenario, the lawyer posts an online comment about a former client. The comment is based on publicly available information. This, too, was considered a violation of ethics rules.
- Even commenting about a client’s conviction – a matter of public record – may constitute a “secret” that falls under the umbrella of confidentiality.
Hanna said the ethics rules in Texas would probably reach the same results. That’s likely true here in North Carolina as well. His advice: “ keep quiet about client activities, whether related to representation or not, both during and after representation.”
N.C. Rule 1.6 Confidentiality of Information
(a) A lawyer shall not reveal information acquired during the professional relationship with a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information protected from disclosure by paragraph (a) to the extent the lawyer reasonably believes necessary:
(1) to comply with the Rules of Professional Conduct, the law or court order;
(2) to prevent the commission of a crime by the client;
(3) to prevent reasonably certain death or bodily harm;
(4) to prevent, mitigate, or rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services were used;
(5) to secure legal advice about the lawyer’s compliance with these Rules;
(6) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client; to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved; or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;
(7) to comply with the rules of a lawyers’ or judges’ assistance program approved by the North Carolina State Bar or the North Carolina Supreme Court; or
(8) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.
Sources:
- Texas Lawyers Insurance Exchange http://www.tlie.org/can-you-ever-reveal-client-secrets-even-if-they-are-posted-online/
- N.C. State Bar http://www.ncbar.com/rules/rpcsearch.asp
- California State Bar http://www.calbar.ca.gov/Portals/0/documents/publicComment/2015/2015_13-0005DisclosurePublicyAvailableInformation.pdf
Jay Reeves a/k/a The Risk Man is an attorney who has practiced North Carolina and South Carolina. Formerly he was Legal Editor at Lawyers Weekly and Risk Manager at Lawyers Mutual. Contact him at jay.reeves@ymail.com
