Marketing, even the most traditional types, often includes reference to clients or case information. Listing "representative" clients in a directory like Martindale-Hubbell goes back to near the beginning of time. Clearly, web sites have expanded on this theme as firms include not only client names, but details about results. Sometimes the client names are omitted but the results are promoted.
But to what extent is a lawyer obligated to maintain the representation of a client confidential? I have always thought that a lawyer must keep the client's identity secret, even if the representation is public knowledge, unless the client consents to reveal the existence of the representation or outcome of the case. From time to time ethics experts have disagreed with that position, indicating that it is acceptable to reveal a client's name if it is general public knowledge. I never understood why. After posting the question on a listserv for legal ethicists, I've figured it out.
ABA Model Rule 1.6, which is in effect in many states, says "A lawyer shall not reveal information relating to the representation of 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." Paragraph (b) does not include any exceptions that pertain to this issue. This is no wiggle room under this rule. The fact that the law firm represents the client is the client's confidence. The lawyer has no right to use that information for his or her marketing, without the client's informed consent. "Informed consent" incidentally suggests that a client cannot consent in total at the beginning of the engagement, but must know the details of the marketing usage prior to consenting. Therefore, under ABA Model Rule 1.6, a lawyer cannot list a client in promotional material, even a directory listing, without the client's consent.
However, other states have a variation of this rule. For example, Virginia's Rule 1.6 states, "A lawyer shall not reveal information protected by the attorney-client privilege under applicable law or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client unless the client consents after consultation..."
So, while the Model Rule states have a broad ban on such disclosures, other states, like Virginia appear to permit disclosure unless it is embarrassing or detrimental. In the case of marketing, particularly where the relationship is generally known to the public, it is hard to see where disclosure of the existence of the representation would be embarrassing or detrimental. Hence two different rules, two different results.
Of course, most marketers would ask how it could ever be good business to list a client or case information without asking the client. But that's business and this is ethics.