Ezel / Ethics Opinions / ABA
ABA 2018-03-06

Can a lawyer blog or post about a client's case if the details are already in the public record?

Short answer: No, not without consent. The opinion concludes that the confidentiality duty in Rule 1.6 covers all information relating to a representation, including information in a public record, so a lawyer may not blog or comment publicly about a client matter unless the client gives informed consent or another rule permits it. Even a hypothetical is barred if a third party could identify the client.
Currency note: this opinion is from 2018
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.
View original ethics opinion (PDF)

ABA Formal Opinion 480: Confidentiality in Lawyer Blogging and Public Commentary

Short answer: The opinion concludes that lawyers who blog or engage in other public commentary may not reveal information relating to a representation, including information contained in a public record, unless disclosure is authorized under the Model Rules, because the Rule 1.6 duty of confidentiality attaches to all information relating to a representation regardless of whether it is publicly available.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the American Bar Association's Model Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

Plain-English summary

The opinion addresses a lawyer's confidentiality duty when blogging or making other public commentary about cases, including details drawn from the public record. It states the conclusion plainly: "lawyers who blog or engage in other public commentary may not reveal information relating to a representation, including information contained in a public record, unless authorized by a provision of the Model Rules."

The opinion grounds this in the breadth of Rule 1.6(a), which bars revealing "information relating to the representation of a client" absent informed consent, implied authorization to carry out the representation, or a Rule 1.6(b) exception. As the opinion explains, "the scope of protection afforded by Rule 1.6 is far broader than attorney-client privileged information," and "even client identity is protected under Model Rule 1.6." The opinion assumes the Rule 1.6(b) exceptions will not apply to public commentary, so such commentary generally requires the client's informed consent.

The opinion rejects a public-record carve-out. It states that "Rule 1.6 does not provide an exception for information that is 'generally known' or contained in a 'public record,'" and that the duty extends to information regardless of whether others may already be aware of it. On hypotheticals, the opinion permits them only when the client cannot be identified: "a violation of Rule 1.6(a) is not avoided by describing public commentary as a 'hypothetical' if there is a reasonable likelihood that a third party may ascertain the identity or situation of the client from the facts set forth in the hypothetical."

The opinion situates the duty within the broader confidentiality framework. It notes Rule 1.9 governs former clients and Rule 1.18(b) protects prospective clients, so the duty can arise before a relationship forms and lasts well beyond its end. It explains that disclosure is not impliedly authorized merely to promote the lawyer, citing Rule 1.8(b) and a lawyer's fiduciary duty, and that public commentary can separately implicate Rule 3.5 and Rule 3.6 (statements that may prejudice a proceeding) and the supervisory duties in Rules 5.1 and 5.3. It treats the duty as central to the lawyer-client relationship, observing that "it is principally, if not singularly, the duty of confidentiality that enables and encourages a client to communicate fully and frankly with his or her lawyer."

In practice

Under this opinion, a lawyer may not blog or comment publicly about a client matter, even using facts already in the public record, unless the client gives informed consent or a Rule permits the disclosure. The opinion holds that Rule 1.6 reaches all information relating to a representation, including the client's identity, and provides no exception for generally known or public-record information. It holds that a hypothetical is permissible only if there is no reasonable likelihood a third party could identify the client, that the duty also covers former and prospective clients, and that self-promotion does not impliedly authorize disclosure.

Common questions

Q: The court filing is public. Can I blog about my client's case using those facts?

A: Per the opinion, no, not without informed consent. Rule 1.6 covers information relating to the representation even when it is in a public record, and provides no exception for generally known or public-record information.

Q: Can I write about a case as a "hypothetical" to be safe?

A: The opinion says only if no one can identify the client. Calling commentary a hypothetical does not avoid a Rule 1.6(a) violation if there is a reasonable likelihood a third party could ascertain the client's identity or situation.

Q: Is the client's identity itself confidential?

A: Per the opinion, yes. Even client identity is protected under Rule 1.6, so a lawyer may not reveal it in public commentary unless an exception applies.

Q: Does this duty end when the representation does?

A: No. The opinion notes the duty reaches former clients under Rule 1.9 and prospective clients under Rule 1.18(b), and that it lasts well beyond the end of the professional relationship.

Background and rules framework

The opinion interprets Model Rule 1.6 (confidentiality), including the breadth of 1.6(a) and the assumption that the 1.6(b) exceptions do not apply to public commentary. It applies Model Rule 1.8(b) (using client information), Model Rule 1.9 (former clients), and Model Rule 1.18(b) (prospective clients), and notes Model Rules 3.5 and 3.6 (statements that may prejudice a proceeding) and Model Rules 5.1 and 5.3 (supervision).

Citations and references

Rules of Professional Conduct:

  • ABA Model Rule 1.6 (confidentiality), including 1.6(a) and (b)
  • ABA Model Rule 1.8(b) (using client information), 1.9 (former clients), 1.18(b) (prospective clients)
  • ABA Model Rules 3.5, 3.6 (statements affecting a proceeding)

Other opinions cited:

  • ABA Formal Op. 479 (2017): the "generally known" exception under Rule 1.9(c)(1)
  • ABA Formal Op. 04-433 (2004): protection not forfeited by public filing
  • ABA Formal Op. 98-411: constructing hypotheticals carefully

See also

Source