Yesterday, Sharon D. Nelson posted on her blog, Ride the Lightning, about In Re Hunter. Several months ago, Virginia’s disciplinary office brought two charges against a lawyer because of the content of his blog. One charge claimed that the blog was an advertisement and as such the lawyer was in violation for failing to include a disclaimer required by the Virginia Rules. The other charge claimed that the lawyer violated his obligation of confidentiality because he blogged about client’s cases.
The Bar prevailed on both counts. The blog was determined to be an advertisement, and there was no dispute that the lawyer did not include the disclaimer. And, information on the blog was determined to have revealed confidential information. Last week, a three judge panel heard an appeal of both issues. The panel determined that the blog was an advertisement and upheld the disciplinary charge finding the lawyer failed to comply with the advertising rules. However, the panel did not uphold the disciplinary finding that the information violated the client’s confidences. The key to this decision is that the information the lawyer blogged about was publically available information.
So, the question becomes whether a lawyer may blog, or otherwise communicate information in advertising material, about the representation if that information is otherwise publically known or available. Here’s the problem with coming to that conclusion – the states have different standards governing the lawyer’s obligation to maintain information confidential. Virginia and a minority of states have an ethics rule (usually Rule 1.6) that requires a lawyer to maintain “secrets and confidences.” On the other hand, Rule 1.6 of the ABA Model Rules of Professional Conduct and the majority of states that have adopted it require that a lawyer not reveal “information relating to the representation.”
Seemingly, “information relating to the representation” is far broader than “secrets and confidences” in the marketing arena. If information is public knowledge, it is hardly a secret. However, “information relating to the representation” clearly, in my mind, covers information that is publically available. It is the client’s right that the lawyer not reveal information. Under either version of the rule, the client may provide consent for the lawyer to reveal the information. But, that decision rests with the client, and in the Model Rules states, that decision is designed to extend to information that may otherwise be publically known.
So, folks should be cautious about giving weight to the Hunter outcome. It is quite possible, if not likely, the decision would have been different in a Model Rule state.
One more wrinkle to this – Minnesota Rule 1.6 prohibits a lawyer from revealing information related to the representation, but has the following exception, which seems to neatly enable marketing through blogs and other communications: A lawyer may reveal information relating to the representation of a client if “the information is not protected by the attorney-client privilege under applicable law, the client has not requested the information not be held inviolate, and the lawyer reasonably believes the disclosure not be embarrassing or likely detrimental to the client.” Now, that’s a rule the states should get behind.