What confidentiality and competence duties apply when a California lawyer discusses a client matter on social media, including blogs and online discussion boards?
LACBA Ethics Opinion 529: Social Media Confidentiality and Pretexting
Short answer: Under former California Rule 3-100 and Rule 3-110, a lawyer must take reasonable precautions to avoid disclosing client confidential information through social media. Disclosures that omit the client's name can still be problematic when aggregated across posts or coupled with a pretexting (catfishing) interlocutor, and may waive work-product protection.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Los Angeles County Bar Association's view of California's 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 hypothetical lawyer active on online discussion sites who shares case-related impressions and details that the lawyer believes are innocuous because the client and witnesses are not named. The lawyer also corresponds privately with an anonymous "Individual" who, unknown to the lawyer, is associated with the opposing side in a pending matter and is catfishing for information.
The committee concludes the lawyer's posts present serious risks under Bus. & Prof. Code section 6068(e)(1) (the duty of confidentiality) and California Rule 3-100. Even unnamed disclosures of geographic location of a lay witness and the subject matter of an expert witness's testimony, combined with blog and discussion-board posts describing the lay witness's memory as "weak" and the expert's view as "very supportive," can let a knowledgeable opposing party deduce both the matter and the witnesses' identities.
The committee further concludes that such disclosures can waive work-product protection. It cites Lenz v. Universal Music Corp. (the "dancing baby" case), where the court found waiver from a client's blog and gmail posts discussing strategy, and Kintera, Inc. v. Convio, Inc., where website posts about the case waived work-product. The same outcome would follow when the lawyer (not the client) makes the disclosures.
The opinion also treats Rule 3-110's competence duty as requiring affirmative care with technology to avoid unintended disclosure, drawing on State Bar Formal Opinion 2010-179 (electronic communications and wireless interception).
In practice
The opinion holds that, under California Rules of Professional Conduct as they stood in 2017, online posts about a current matter, even with the client unnamed, can violate the duty of confidentiality and waive work product when the aggregated disclosures permit a reader to identify the client or matter. Lawyers using social media in a professional capacity owe the same Rule 3-100 and Rule 3-110 duties they owe offline.
The opinion is from 2017, predating California's November 1, 2018 adoption of new rules and is framed in terms of former Rule 3-100 (confidentiality) and Rule 3-110 (competence). Current California Rule 1.6 (confidentiality) and Rule 1.1 (competence) carry forward the core duties.
Common questions
Q: Can I post about a pending case on a legal-industry discussion board if I leave out the client's name?
A: Per the opinion, omitting the name is not enough. The committee concludes that aggregated details (witness location, memory, opinions about evidence) can let a knowledgeable reader identify the client or witnesses. Rule 3-100 and Bus. & Prof. Code section 6068(e)(1) apply to the content of the disclosure, not just the name.
Q: Does an unauthorized social-media disclosure waive the lawyer-client privilege?
A: The opinion notes that under Evidence Code section 912(a), only the privilege holder (the client) can waive the privilege. An inadvertent disclosure by the lawyer may not waive privilege, but the disclosed underlying facts are still usable by the opposing party against the client.
Q: What about work product?
A: Per the opinion, work-product protection under Code of Civil Procedure sections 2018.010 et seq. can be waived by social-media disclosures. The opinion cites Lenz and Kintera as examples and concludes that the lawyer's own posts can produce the same waiver as the client's.
Q: I had a private chat with someone online who turned out to be associated with the opposing side. What rules apply?
A: Per the opinion, the duty of confidentiality applies regardless of whom the lawyer is talking to. The opinion treats catfishing as one of several risks that make online discussion particularly hazardous because the recipient may not be who they say they are and may share or aggregate the information.
Q: What's the practical scope of the competence duty here?
A: The opinion applies Rule 3-110 and State Bar Formal Opinion 2010-179 to require the lawyer to take reasonable precautions in using technology, including social media, to avoid undue risk of unauthorized disclosure of confidential client information.
Background and rules framework
The opinion interprets former California Rule 3-100 (confidentiality) and Rule 3-110 (competence), grounded in Business and Professions Code section 6068(e)(1) (preservation of client "secrets"). It also relies on the evidentiary lawyer-client privilege under Evidence Code sections 950 et seq., the work-product doctrine under Code of Civil Procedure sections 2018.010 et seq., and Evidence Code section 912(a) on waiver.
Citations and references
Rules of Professional Conduct:
- Former California Rule 3-100 (confidentiality)
- Former California Rule 3-110 (competence)
Statutes:
- Bus. & Prof. Code section 6068(e)(1) (duty to preserve client secrets)
- Code Civ. Proc. sections 2018.010 et seq. (attorney work product)
- Evid. Code sections 912(a), 950 et seq. (privilege waiver and scope)
- Fed. R. Evid. 502 (federal waiver of privilege and work product)
Cases:
- In re Jordan, 7 Cal.3d 930 (Cal. 1972), scope of client confidentiality
- McDermott Will & Emery LLP v. Superior Court, 10 Cal.App.5th 1083 (2017), waiver of privilege
- Lenz v. Universal Music Corp., 2010 U.S. Dist. LEXIS 119271 (N.D. Cal. 2010), work-product waiver from client online posts
- Kintera, Inc. v. Convio, Inc., 219 F.R.D. 503 (S.D. Cal. 2003), work-product waiver from public allegations
Other opinions cited:
- California State Bar Formal Opinion 2016-195
- California State Bar Formal Opinion 2010-179: technology and competence
- California State Bar Formal Opinions 2004-165, 2003-161, 1999-154, 1993-133, 1981-58, 1980-52
- LACBA Formal Opinion 524: hiring nonlawyer employees with confidential information
- LACBA Formal Opinions 456, 436, 386: scope of confidentiality
See also
- LACBA Opinion 524: Hiring Nonlawyer Employees Who May Be in Possession of Confidential Information
- No other sibling opinions yet indexed.
Source
- Landing page: https://lacba.org/?pg=ethics-opinions
- Original PDF: https://lacba.org/docDownload/2010562