Can a lawyer post a question or comment about a current matter to a listserv or online lawyer discussion group without the client's consent?
ABA Formal Opinion 511R: Confidentiality When Posting to Listservs
Short answer: The opinion concludes that Rule 1.6 bars a lawyer from posting questions or comments relating to a representation to a listserv, even in hypothetical or abstract form, without the client's informed consent where there is a reasonable likelihood the post would let a reader then or later identify the client or the situation; lawyers may, however, take part in general listserv discussions of legal news and developments that will not disclose, or lead to disclosure of, information relating to a representation.
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. (This is the revised version of the opinion, designated 511R.)
Plain-English summary
The opinion asks whether a lawyer is impliedly authorized to disclose information relating to a representation, or information that could lead to its discovery, by posting an inquiry or comment to a listserv or online discussion group, without the client's informed consent. It answers that lawyers generally are not so authorized.
The opinion starts from the breadth of Rule 1.6(a), which protects "all information relating to the representation, whatever its source," is broader than the attorney-client privilege, and can cover even publicly available information and the client's identity. It explains that the rule also restricts disclosures that could reasonably lead to the discovery of protected information, so anonymized or hypothetical posts remain restricted where a reader could then or later identify the client or situation. Per the opinion, "without the client's informed consent, Rule 1.6 forbids a lawyer from posting questions or comments relating to a representation, even in hypothetical or abstract form, if there is a reasonable likelihood that the lawyer's posts would allow a reader then or later to infer the identity of the lawyer's client or the particular situation involved."
The opinion distinguishes the lawyer-to-lawyer consultation allowed by Formal Opinion 98-411. There, a lawyer could share anonymized, non-prejudicial information with a single unaffiliated lawyer who would not further disclose or use it against the client. A listserv is different: "typical listserv discussion groups include participants whose identity and interests are unknown to lawyers posting to them and who therefore cannot be asked or expected to keep information relating to the representation in confidence." An opposing lawyer might even read the post. The opinion concludes that "because protections against wider dissemination are lacking, posting to a listserv creates greater risks than the lawyer-to-lawyer consultations envisioned by ABA Formal Ethics Opinion 98-411."
Not every post is barred. The opinion says a lawyer may post general questions or hypotheticals where the client or situation will never become known or the question is so abstract that it cannot be associated with a particular client, such as asking for cases, articles, forms, or jurisdictional approaches. The risk rises with the unusualness of the matter, with single-client lawyers such as in-house and government lawyers, with litigators whose client is readily inferable, with matters covered by the media, and within small or specialized communities. In those situations the opinion states "the lawyer should err on the side of caution and avoid specific hypotheticals, refrain from posting, or obtain the client's informed consent if there is any reasonable concern."
In practice
Under this opinion, a lawyer may participate in listservs for education and to keep abreast of legal developments without client consent, so long as each post does not disclose, or is not reasonably likely to lead to the disclosure of, information relating to a representation. Per the opinion, the more unusual the situation, "the greater the risk that the client can be identified, and therefore the greater the care that must be taken to avoid inadvertently disclosing client information protected by Rule 1.6." Where a post relating to a current matter could reasonably be connected to an identifiable client, the opinion holds the lawyer must obtain the client's informed consent before posting. The opinion notes the same principles apply to other media and in-person settings, including discussing one's work at gatherings.
Common questions
Q: Can I ask a listserv for help on a case I am handling right now?
A: Per the opinion, only if the post will not, and is not reasonably likely to, let a reader identify your client or the situation. If there is a reasonable likelihood of identification, even from a hypothetical, you need the client's informed consent first.
Q: Does framing the question as a hypothetical solve the problem?
A: Not by itself. The opinion says anonymized or hypothetical posts are still restricted if a reader could then or later infer the client's identity or the particular situation involved.
Q: What kinds of listserv posts are generally fine without consent?
A: The opinion permits general participation in discussions of legal news, recent decisions, or changes in the law, and abstract questions such as requests for cases, articles, forms, checklists, or how a jurisdiction handles an issue, where no identifiable client is implicated.
Q: Why are listservs treated more strictly than calling one colleague for advice?
A: Per the opinion, a lawyer-to-lawyer consultation under Formal Opinion 98-411 involves a known person who will keep the information confidential and not use it against the client, while a listserv reaches unknown participants who cannot be expected to do so, and may include an opposing lawyer.
Background and rules framework
The opinion interprets Model Rule 1.6 (confidentiality of information), including Rule 1.6(a) and its Comments [2] through [5], which establish that the duty covers all information relating to the representation and reaches disclosures that could lead to discovery of protected information. It applies Rule 1.0(e) (informed consent), and references Rule 1.1 Comment [8] (keeping abreast of the law) for the educational value of listservs and Rule 1.9(c) (former-client confidences). It situates listserv posting against Formal Opinion 98-411 (lawyer-to-lawyer consultation) and the public-commentary opinions 480 (2018) and 496 (2021).
Citations and references
Rules of Professional Conduct:
- ABA Model Rule 1.6 (confidentiality), including 1.6(a) and Comments [2]-[5]
- ABA Model Rule 1.0(e) (informed consent)
- ABA Model Rule 1.1 Comment [8] (duty to keep abreast of the law)
- ABA Model Rule 1.9(c) (former-client confidentiality)
Other opinions cited:
- ABA Formal Op. 98-411 (1998): lawyer-to-lawyer consultation with unaffiliated counsel
- ABA Formal Op. 480 (2018): public commentary and blogging
- ABA Formal Op. 496 (2021): responding to online criticism
- ABA Formal Op. 04-433 (2004): Rule 1.6 protection survives public availability
See also
- ABA Formal Op. 512: Generative AI Tools
- CA COPRAC Op. 2010-179: Confidentiality and Competence Using Technology
- CA COPRAC Op. 2012-184: Virtual Law Office and the Cloud
Source
- Landing page: ABA Formal Ethics Opinions index
- Original PDF: aba-formal-opinion-511r.pdf