Yesterday I posted about In re Hunter, a Virginia disciplinary matter that addressed ethics obligations regarding blog posts. A three-judge panel upheld Hunter’s right to blog about cases without his client’s consent. I wrote that there are different state standards governing confidentiality and that bloggers should not depend on this decision because they may be in states that impose a higher standard on client confidentiality. I ended my post by encouraging states to adopt a rule like that of Minnesota, which 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.”
I got that much right, but here’s what I got wrong. I had thought that Virginia was one of the states that prohibit lawyers from revealing “secrets and confidences” and therefore if the information is public knowledge, and no longer a secret, the lawyer may reveal that information. After looking at this case in a little more detail, I realize that Virginia has the same language as Minnesota.
My basic point remains the same – folks should not rely on a decision from one state when the rules of their state are different. But it is important also be clear about the rule at issue here.