May an Illinois lawyer post a client's question on a bar association listserv or online discussion group to get advice from other lawyers?

Plain-English summary

A solo practitioner, Lawyer A, hits a discovery problem in a divorce case and wants to post a question to a bar association family-law email discussion group to ask how to proceed. The opinion considers whether she may do so consistent with her professional duties.

The opinion holds that consulting other lawyers through an online discussion group is permissible and can support competent representation under Rule 1.1, especially for a lawyer without a partner or co-counsel to consult. But the consulting lawyer must protect client confidentiality under Rule 1.6, which bars revealing information relating to the representation without informed consent, implied authorization, or another exception. Because Lawyer A is a solo, she must seek advice from lawyers not associated with the matter. Drawing on ABA Formal Op. 98-411, the opinion explains that an inquiry which is general or abstract, or framed as a hypothetical, does not violate Rule 1.6 as long as there is no reasonable likelihood the client's identity could be determined and no information relating to the representation is disclosed.

If the consulted lawyer or others viewing the post could identify the client, or the inquiry otherwise risks disclosing information that could harm the client, the lawyer must consult the client under Rule 1.4 and obtain informed consent (Rule 1.0(e)), including an explanation of how the disclosure could harm the client and that it may waive the attorney-client privilege. The opinion notes practical risks: listserv discussions may be searchable, and even closed groups cannot prevent a message from being forwarded. It also cautions that the consulting lawyer should avoid seeking advice from a lawyer who is or is likely to be counsel for an adverse party, and should not treat the consultation as a substitute for the lawyer's own legal research and judgment (Rule 1.1, Comment 5).

The opinion adds that the consulted lawyer also has duties: a consultation alone generally does not create a client-lawyer relationship with the consulting lawyer's client, but the consulted lawyer must consider loyalty to his or her own clients (Rules 1.7 and 1.9), check for conflicts where the consulting lawyer's client is identifiable, and otherwise take reasonable steps to avoid providing information that could impair obligations to the consulted lawyer's own clients.

In practice

The opinion holds that an Illinois lawyer may use a listserv or online discussion group to consult other lawyers, and that doing so can support competence under Rule 1.1. It holds that a general, abstract, or properly anonymized hypothetical inquiry does not violate Rule 1.6, but that if the client could be identified or information relating to the representation must be disclosed, the lawyer must confer with the client and obtain informed consent under Rules 1.4 and 1.0(e). It holds the consulting lawyer should avoid consulting a likely adversary's counsel and should not substitute the consultation for the lawyer's own research, and that the consulted lawyer must watch for conflicts and loyalty duties to its own clients under Rules 1.7 and 1.9.

Common questions

Q: Can a solo lawyer post a client's question to a bar listserv?

A: Yes, within limits. The opinion holds the lawyer may consult other lawyers not associated with the matter if the inquiry is general or abstract and there is no reasonable likelihood the client can be identified and no information relating to the representation is disclosed.

Q: When does posting to a listserv require client consent?

A: When the consulted lawyer or others could identify the client, or the inquiry otherwise risks disclosing information that could harm the client. The opinion holds the lawyer must then consult the client under Rule 1.4 and obtain informed consent, including that disclosure may waive the attorney-client privilege.

Q: Are there risks beyond confidentiality?

A: Yes. The opinion notes listserv discussions may be searchable and even closed-group messages can be forwarded, and it cautions against consulting a lawyer who is or is likely to be the adverse party's counsel.

Q: Does the lawyer who answers the post take on duties too?

A: Yes. The opinion holds the consulted lawyer must consider loyalty to its own clients under Rules 1.7 and 1.9, check for conflicts where the consulting lawyer's client is identifiable, and avoid providing information that could impair its obligations to its own clients.

Background and rules framework

The opinion interprets Illinois Rule 1.6 (confidentiality; Model Rule 1.6) and its implied-authorization comment, Rule 1.1 (competence; Model Rule 1.1) and its requirement of independent factual and legal analysis, Rule 1.4 (communication; Model Rule 1.4) and the Rule 1.0(e) definition of informed consent, and Rules 1.7 and 1.9 (current- and former-client conflicts) as they bear on the consulted lawyer. It relies on ABA Formal Op. 98-411 for the standard governing a lawyer's consultation with lawyers outside the firm.

Citations and references

Rules of Professional Conduct:

• Illinois RPC 1.6 (confidentiality) / MR 1.6
• Illinois RPC 1.1 (competence) / MR 1.1
• Illinois RPC 1.4 (communication) / MR 1.4
• Illinois RPC 1.0(e) (informed consent) / MR 1.0
• Illinois RPC 1.7, 1.9 (current- and former-client conflicts) / MR 1.7, MR 1.9

Other opinions cited:

• ABA Formal Op. 98-411 (1998), consulting lawyers outside the firm
• Oregon Formal Ethics Op. 2011-184
• Maine Ethics Op. 171 (1999)

See also

• NY State Bar Op. 1020: Cloud Storage for Sharing Transaction Documents
• NYC Bar Ethics Op. 2006-3: Outsourcing Legal Support Services Overseas
• ISBA Ethics Op. 12-08: Mandatory Disclosure to Prevent Substantial Bodily Harm

Source

• Landing page: https://www.isba.org/ethics/opinions/1215