Can a Kentucky lawyer post about a current or former client, or name the client, on a blog or social media without consent, and does a public record change that?

Plain-English summary

The opinion answers three questions about disclosing client information on social media, and answers no to each. A lawyer may not, in a blog or other social media, reveal information relating to the representation of a current or former client without consent; may not reveal the identity of a current or former client without consent; and there is no exception for information contained in a public record.

The opinion explains that SCR 3.130(1.6)(a) defines confidential information broadly as "information relating to the representation of a client," wider than the older Model Code (DR 4-101) and Restatement (section 60), which limited the duty to privileged communications and information that could disadvantage the client. Under Rule 1.6(a), unless an exception in Rule 1.6(b) applies, a lawyer must obtain client consent before revealing any information relating to the representation.

Drawing on KBA E-253, the opinion treats client names and addresses as presumptively confidential, revealable without consent only in narrow situations (for example, where the information is already public as a result of the representation, where it is obvious the client does not expect confidentiality, or with written authorization). It notes a lawyer may reveal client information to facilitate a firm merger or lateral move (KBA E-443), but finds no justification for posting about clients on social media, citing discipline imposed in Office of Lawyer Regulation v. Pershek and In re Smith. The opinion adds that the duty extends to former clients under SCR 3.130(1.9)(c)(2), though a lawyer may use information that has become "generally known," and warns that thinly disguised hypotheticals do not avoid Rule 1.6(a), citing ABA Formal Op. 480.

In practice

Under this opinion, a Kentucky lawyer may not blog or post on social media about a current or former client's matter, or identify the client, without the client's consent. The opinion holds that the public-record status of information does not create an exception: because Rule 1.6(a) reaches all information relating to the representation, the fact that it could be found in a public record does not authorize disclosure. The opinion notes the former-client duty under SCR 3.130(1.9)(c)(2) carries the same prohibition, subject to the "generally known" use permitted by SCR 3.130(1.9)(c)(1), and that disguising a client as a "hypothetical" does not cure a disclosure if the client could be identified.

Common questions

Q: Can a lawyer blog about a client's case without naming the client?

A: Not if the client could be identified. The opinion concludes a lawyer may not reveal information relating to the representation without consent, and warns (citing ABA Formal Op. 480) that a "hypothetical" does not avoid Rule 1.6(a) if a third party could reasonably ascertain the client's identity.

Q: Can a lawyer post a client's name on social media if it is already in court records?

A: No. The opinion answers Question 3 no: there is no public-record exception, because SCR 3.130(1.6)(a) protects all information relating to the representation regardless of whether it also appears in a public record.

Q: Does the duty apply to former clients?

A: Yes. The opinion explains SCR 3.130(1.9)(c)(2) extends the duty to former clients, though under SCR 3.130(1.9)(c)(1) a lawyer may use information that has become generally known.

Background and rules framework

The opinion interprets SCR 3.130(1.6) (confidentiality of information; Model Rule 1.6) and SCR 3.130(1.9)(c) (duties to former clients; Model Rule 1.9). It contrasts Kentucky's broad "information relating to the representation" standard with the narrower privilege-based standards of the former Model Code and the Restatement, and relies on the prior Kentucky opinion KBA E-253 on disclosure of client names and addresses.

Citations and references

Rules of Professional Conduct:

• MR 1.6(a) / SCR 3.130(1.6)(a): confidentiality; "information relating to the representation."
• MR 1.9(c) / SCR 3.130(1.9)(c): use and disclosure of a former client's information.

Cases:

• In re Smith, 991 N.E.2d 106 (Ind. 2013), disbarment for writing a book about a former client.
• Office of Lawyer Regulation v. Pershek, 798 N.W.2d 879 (Wis. 2011), suspension for blogging about clients.

Other opinions cited:

• KBA E-253: disclosure of client names and addresses.
• KBA E-443: client information disclosed to facilitate a firm merger or lateral move.
• ABA Formal Op. 480: confidentiality in blogging and public commentary; the hypothetical caveat.
• ABA Formal Op. 479: the "generally known" exception to former-client confidentiality.

See also

• ABA Formal Op. 480: Confidentiality in Lawyer Blogging and Public Commentary
• ABA Formal Op. 479: The 'Generally Known' Exception to Former-Client Confidentiality
• ABA Formal Op. 511R: Confidentiality When Posting to Listservs

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-447.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Formal Ethics Opinion
KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-447
Issued: January 18, 2019

The Rules of Professional Conduct are amended periodically. Lawyers should consult the current version of the rule and comments, SCR 3.130 (available at http://www.kybar.org/237), before relying on this opinion.

Subject: Disclosure of Information on Social Media

Question #1: In a blog or other social media, may a lawyer reveal information relating to the representation of a current or former client without the client's consent?

Answer: No

Authority: SCR 3.130 (1.9 (c)(2)) and comment 16; (1.6(a)) and comment 4; KBA E-253; Hudson, Client Consent is Key, May 2018 ABA Journal, p. 24; In re Smith, 991 N.E.2d 106 (Ind. 2013); Office of Lawyer Regulation v. Pershek, 798 N.W.2d 879 (Wis. 2011);

Question #2: May an attorney reveal the identity of a current or former client in a blog or other social media without the client's consent?

Answer: No. See opinion

Authority: KBA E-253.

Question #3: Is there an exception to (1) or (2) for information contained in a public record?

Answer: No. See opinion.

Authority: SCR 3.130(1.6(a)) and comment 4; KBA E-253; Hudson, Client Consent is Key, May 2018 ABA Journal, p. 24.

DISCUSSION:

SCR 3.130(1.6(a)) defines confidential information as “information relating to the representation of a client,” a broader definition than is found in the ABA Model Code of Professional Responsibility and the Restatement of the Law Governing Lawyers. The Model Code (DR 4-101) and the Restatement (sec. 60) limit lawyers' duty of non-disclosure to communications protected by the attorney-client privilege and information that might work to clients' disadvantage. Rule 1.6(a) of the ABA Model Rules of Professional Conduct, on which SCR 3.130(1.6)(a) is based, is not so limited. Unless one of the exceptions in Rule 1.6(b) applies, Rule 1.6(a) requires a lawyer to obtain client consent before revealing any information relating to the client's representation.

In KBA E-253, applying DR 4-101(C) of the Model Code of Professional Responsibility, the Committee opined that, absent consent, a lawyer may reveal names and addresses of clients only: 1) where the information is in the public record as a result of the attorney's representation; or 2) where the circumstances make it obvious that the client does not expect confidentiality as to the existence of the attorney client relationship, or 3) where the client has specifically authorized in writing the release of the information.

In KBA E-253, the Committee opined that a lawyer may reveal a client's name and address only if it is obvious that the client does not expect name and address to be confidential. Clients' names and addresses should be presumed to be confidential. While decided under the old Code, KBA E-253 is sensible and, we believe, consistent with prevailing practice.

Without client consent, a lawyer may reveal names and addresses (and the nature of the representation) where necessary to facilitate a firm merger or lateral transfer (KBA E-443), and there may be other situations in which a lawyer should be permitted to reveal client information. As examples, in comment h to Section 60 of the Restatement, the American Law Institute cited cooperating with other lawyers with similar issues, for example personal injury lawyers with products liability claims, and “cooperating with reasonable efforts to obtain information about clients and law practice for public purposes such as historical research,” for example a biography of a deceased client.

However, there is no justification for revealing information, without consent, about past or present clients in a blog or other social media. In Office of Lawyer Regulation v. Pershek, 798 N.W.2d 879 (Wis. 2011), the lawyer was suspended for blogging about her clients; in In re Smith, 991 N.E.2d 106 (Ind. 2013), the lawyer was disbarred for writing a book about a former client. The disciplinary cases involve negative disclosures, but the rule against disclosure applies to all information, whether positive, neutral or negative.

Lawyers should be careful in using thinly disguised hypotheticals. “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.” ABA Formal Op. 480.

A lawyer's duty of confidentiality extends to both current and former clients. SCR 3.130(1.9)(c)(2) requires that a lawyer not reveal information relating to the lawyer's representation of a client except as the Rules would permit or require with respect to a client. Hence, a lawyer may not reveal confidential client information even though such information may be contained in a public record. However, a lawyer may use information relating to the representation of a former client if the information has become “generally known.” See SCR 3.130(1.9)(c)(1) and ABA Formal Opinion 479.

Note To Reader

This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530. This Rule provides that formal opinions are advisory only.