I have been practicing law since 1980. Throughout my career, lawyers have discussed their cases with each other. As a young lawyer, I would seek out mentors both inside and outside my firm to give me good advice on how to handle cases generally and about specific issues relative to my cases. In those days, we discussed cases by phone or over lunch. We also discussed questions about cases with speakers at CLE presentations.
After the advent of email, lawyers began joining listervs to exchange information. Most of the listervs have restrictive membership rules to prevent information from getting back to opposing counsel. In my experience with listervs though, I often thought many lawyers were too free with the facts of their particular cases and divulged confidential client information.
Now, social media is becoming the predominant way that people exchange information about both important and trivial matters. Besides websites, lawyers market their services most heavily on Facebook and LinkedIn. Facebook and LinkedIn have become vehicles for lawyers to exchange information about their cases. So the question becomes: Can lawyers ethically use social media to exchange information about their cases? State Bar of Texas Ethics Opinion Number 673 issued in August 2018 answers that question.
The opinion acknowledges the custom of lawyers discussing their cases with other lawyers to “test their knowledge, exchange ideas, and broaden their understanding of the law, with the realistic goal of benefiting their clients” but cautions lawyers not to violate their professional obligations under the Texas Disciplinary Rules.
Rule 1.05 covers both “privileged confidential information” and “unprivileged confidential information.” Most lawyers are sensitive to attorney/client communications that are privileged confidential information. But, unprivileged confidential information is much broader and can cover subjects that have been in the newspaper or on the evening news. To get good advice on an issue, a lawyer obviously must disclose sufficient facts about the case to make sure the issue is clearly framed. By doing so, the lawyer flirts with violating Rule 1.05.
With this risk in mind, lawyers need to rely on the application of the exceptions to the rule for revealing unprivileged client information. Subpart (d)(1) says a lawyer may reveal unprivileged confidential information “when impliedly authorized to so in order to carry out the representation”, and subpart (d)(2) says a lawyer may reveal unprivileged confidential information when the lawyer has reason to believe it is necessary to do so in order to “carry out the representation effectively.” Per the Committee, these exceptions permit a lawyer to reveal a limited amount of unprivileged client information to lawyers outside the lawyer’s firm without the client’s express consent when the lawyer reasonably believes that the revelation will further the representation and when it is not reasonably foreseeable that the client will be prejudiced.
In setting this standard, the Committee set out the following guidelines:
- An inquiring lawyer may reveal unprivileged client confidential information only to the extent necessary for effective consultation for the client’s benefit. If an effective consultation cannot be held without divulging any unprivileged confidential information, then the lawyer should not divulge it.
- If the lawyer determines that unprivileged client information must be revealed, the lawyer should use a hypothetical that does not reveal the identity of the client or information identifiable to the client. If discussion about the hypothetical threatens to harm or prejudice the client, then Rule 1.05 may be violated absent client consent to the disclosure. The lawyer should evaluate the risk of prejudice to the client by assuming that the inquiry might be disclosed to adverse counsel or the public.
- A lawyer should never disclose privileged confidential information specific to an identifiable client that foreseeably might prejudice the client without informed client consent.
- If the client instructs the lawyer not to reveal confidential information, then the lawyer may not do so even if the exceptions would otherwise apply.
- A lawyer who intends to reveal unprivileged confidential information to a responding lawyer may wish to consider getting the responding lawyer’s agreement to keep the information confidential. If no agreement for confidentiality is obtained, the inquiring lawyer should take that fact into consideration before revealing confidential information.
The opinion protects the responding lawyer by stating no attorney client relationship is formed between the inquiring lawyer’s client and the responding lawyer and absent an agreement to the contrary a responding lawyer has no duty of care, loyalty or confidentiality to the client.
The Committee also excepted communications between an inquiring lawyer and a private ethics lawyer or the State Bar of Texas Ethics Helpline from the scope of the opinion.
In conclusion, while the opinion does not ban lawyer to lawyer communications about cases on social media, lawyers need to be very careful when framing social media inquiries. The inquiring lawyer needs to carefully consider whether unprivileged client information must be revealed, and if so, either craft a hypothetical to avoid doing so or get client consent.