Can a Massachusetts lawyer list citations to published cases the lawyer handled on the firm website without client consent?

Plain-English summary

A litigation lawyer asked whether client permission is needed before listing citations to published opinions in which the lawyer appeared as counsel on the firm website. The opinion concludes that a published judicial opinion can nevertheless contain confidential information protected by Rule 1.6, so the answer depends on the nature of the information and whether it is generally known.

The opinion works through the Rule 1.6(a) definition. Information disclosed to a court is not protected by the attorney-client privilege, so the privilege prong does not apply, and the committee assumes the lawyer did not agree to keep the information confidential. But the committee finds that information about a client in a published opinion can still be embarrassing or detrimental, for example by revealing personal facts or a commercial client's exposure to an unfair-trade-practices claim, so Rule 1.6(a)(ii) can apply.

The opinion stresses that publication does not by itself make information generally known. The committee notes that opinions range from front-page SJC decisions to summary dispositions read only by the parties, so a lawyer needs evidence beyond the fact of publication to invoke the generally-known exception. The opinion also rejects the idea that website citation is impliedly authorized, quoting ABA Ethics Opinion 10-547 that website disclosure of client-identifying information promotes the firm rather than carrying out the representation. The committee concludes that when in doubt, the lawyer should seek consent, and separately recommends a disclaimer under Rule 7.1, Comment 3, when a website regularly features case results.

In practice

Under this opinion, listing a case citation on a firm website is permitted without consent only where the opinion contains no information embarrassing or detrimental to the client, or where such information is genuinely generally known in the local community or relevant field. Per the opinion, the fact that the decision was published does not satisfy the generally-known exception on its own.

Where the information could be embarrassing or detrimental and is not generally known, the opinion holds that informed consent must normally be obtained before citing the case. The committee adds that if the lawyer is in doubt about whether information is generally known, it concludes the lawyer should err on the side of caution and seek consent. It also recommends including a disclaimer so the site does not imply the same results are guaranteed for others.

Common questions

Q: If the opinion is published, isn't the information automatically public and fair to use?

A: No. The opinion states that publication does not by itself bring information within the generally-known exception. The committee distinguishes widely read decisions from summary dispositions read only by the parties and says the lawyer needs evidence beyond publication.

Q: Does the website use count as impliedly authorized disclosure?

A: The opinion concludes it does not. Quoting ABA Ethics Op. 10-547, the committee reasons that posting client-identifying information promotes the lawyer or firm rather than carrying out the representation, so it is not impliedly authorized.

Q: What if the lawyer is unsure whether the information is generally known?

A: Per the opinion, the lawyer should err on the side of caution and seek the client's consent.

Background and rules framework

The opinion interprets Massachusetts Rule of Professional Conduct 1.6 (confidentiality of information), which corresponds to ABA Model Rule 1.6. The Massachusetts rule's "confidential information" definition and its generally-known carve-out are discussed in Rule 1.6, Comment 3A. The opinion notes a 2024 correction by the Supreme Judicial Court replacing "legal community" with "local community" in the rule, effective April 1, 2024. It also draws on Rule 7.1 (communications about a lawyer's services) and its Comment 3 for the recommended results disclaimer.

Citations and references

Rules of Professional Conduct:

• MR 1.6 / Mass. R. Prof. C. 1.6 (confidentiality; generally-known exception, Comment 3A)
• MR 7.1 / Mass. R. Prof. C. 7.1 (communications about a lawyer's services)

Other opinions cited:

• ABA Formal Op. 10-547: website disclosure of client-identifying information is not impliedly authorized

See also

• ABA Ethics Op. 479: the "generally known" exception to former-client confidentiality
• ABA Ethics Op. 480: confidentiality in blogging and public commentary

Source

• Landing page: https://www.massbar.org/publications/ethics-opinions/ethics-opinion-article/ethics-opinions-2024-opinion-24-2/opinion-24-2