Does a Minnesota lawyer need a client's informed consent before posting about the client's matter on a listserv?

Plain-English summary

The opinion addresses whether ABA Formal Opinion 511R, which reads Model Rule 1.6 to require a client's informed consent before a lawyer posts questions or comments about a representation to a listserv, governs Minnesota lawyers. The Board concludes it does not. The opinion explains that ABA 511R is "quite broad," prohibiting posts even "in hypothetical or abstract form" when there is a reasonable likelihood the post would let a reader infer the client's identity or situation.

The Board grounds its different result in the text of Minnesota Rule 1.6. Rule 1.6(a) sets the baseline duty not to reveal information relating to a representation, but Rule 1.6(b)(2) creates a qualified exception: a lawyer may reveal information that is not protected by the attorney-client privilege, that the client has not requested be held inviolate, and that the lawyer reasonably believes would not be embarrassing or likely detrimental to the client. The opinion notes this exception was adopted by the Minnesota Supreme Court in 2005, replacing the older "confidence" and "secret" framework.

Because the Model Rules contain no equivalent to Rule 1.6(b)(2), the Board reasons that ABA 511R is "overly restrictive compared to what is allowed in Minnesota." The opinion holds that ABA Formal Opinion 511R "is not applicable to the Minnesota Rules of Professional Conduct."

The opinion acknowledges that other jurisdictions have disciplined lawyers for listserv or public-forum posts (citing matters from Illinois, Wisconsin, Oregon, and Colorado), but concludes that in each of those cases the conduct would also have violated Minnesota Rule 1.6(b)(2) because the information was privileged, embarrassing, or otherwise protected. The Board therefore finds those precedents do not bear on how Rule 1.6 applies to listservs in Minnesota.

In practice

Under this opinion, a Minnesota lawyer's listserv post about a client matter is governed by Rule 1.6(b)(2) rather than by ABA Formal Opinion 511R. Conduct that discloses only information that is non-privileged, not held inviolate at the client's request, and not reasonably believed to be embarrassing or detrimental to the client does not breach Rule 1.6(a). The opinion states that Minnesota's confidentiality exceptions differ from Model Rule 1.6, so the Model Rule consent analysis does not control here.

Common questions

Q: Does ABA Formal Opinion 511R apply to Minnesota lawyers posting on listservs?

A: No. The Board holds that ABA Formal Opinion 511R "is not applicable to the Minnesota Rules of Professional Conduct" because Minnesota Rule 1.6(b)(2) permits disclosures that the Model Rule does not.

Q: When can a Minnesota lawyer post about a client matter without informed consent?

A: When the information is not protected by the attorney-client privilege, the client has not asked that it be held inviolate, and the lawyer reasonably believes disclosure would not be embarrassing or likely detrimental to the client, per Rule 1.6(b)(2).

Q: Does this opinion mean listserv posts are always safe in Minnesota?

A: No. The opinion notes that lawyers in other states were disciplined for posts that revealed privileged or embarrassing client information, and that such posts would also violate Rule 1.6(b)(2) in Minnesota.

Q: Why does Minnesota reach a different result than the ABA?

A: The opinion explains that the Model Rules have no equivalent to Rule 1.6(b)(2), which Minnesota adopted in 2005, so Minnesota takes what the Board calls a "measured, practical approach" that allows some disclosures the Model Rule would prohibit.

Background and rules framework

The opinion interprets Minnesota Rule of Professional Conduct 1.6 (the analog of Model Rule 1.6 on confidentiality of information). Rule 1.6(a) prohibits a lawyer from knowingly revealing information relating to the representation of a client except as permitted by paragraph (b). Rule 1.6(b)(2) supplies the exception central to the opinion, allowing disclosure of information that is not privileged, not requested to be held inviolate, and not reasonably believed to be embarrassing or detrimental. The opinion traces this language to the Minnesota Supreme Court's 2005 amendment, which replaced the prior "confidence" and "secret" definitions in former Rule 1.6(d) (2004) with the current qualified exception, and it quotes Comment [4] on the permissible use of hypotheticals.

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality of information)
• Minnesota RPC 1.6(a) (general duty not to reveal information relating to a representation)
• Minnesota RPC 1.6(b)(2) (exception for non-privileged, non-inviolate, non-detrimental information)

Cases:

• In re Peshek, M.R. 23794, 09 CH 89 (Ill. May 18, 2010); Office of Lawyer Regulation v. Peshek, 334 Wis. 2d 373, 798 N.W.2d 879 (2011), public blog revealing client information
• In re Quillinan, 20 DB Rptr. 288 (Or. 2006), revealing client confidences on a bar listserv
• In re Tsamis, No. 2013PR00095 (Ill. Att'y Registration & Disciplinary Comm'n Jan. 15, 2014), adversarial response to a negative review
• People v. Isaac, 470 P.3d 837 (Colo. O.P.D.J. 2016), response to a negative review listing client information

Other opinions cited:

• ABA Formal Opinion 511R: informed consent required before listserv posts under Model Rule 1.6 (the opinion holds this is not applicable in Minnesota)

See also

• ABA Ethics Op. 480: Confidentiality in Blogging and Public Commentary
• ABA Ethics Op. 496: Responding to Online Criticism

Source

• Landing page: https://lprb.mncourts.gov/lawyers-professional-responsibility-board-opinions/
• Original PDF: https://lprb.mncourts.gov/wp-content/uploads/2025/05/Opinion-26_compressed.pdf

Original opinion text

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

LAWYERS PROFESSIONAL RESPONSIBILITY BOARD
OPINION NUMBER 26
LAWYER CONFIDENTIALITY OBLIGATIONS WHEN
COMMUNICATING ON LISTSERVS®

If a lawyer reasonably believes the disclosure of information that is not protected by the attorney client privilege would not be embarrassing or likely detrimental to the client and the client has not asked that the information be held inviolate, it is not a breach of the confidentiality obligations provided for in Rule 1.6(a) of the Minnesota Rules of Professional Conduct to disclose such information on a Listserv®. When the disclosed information falls within Rule 1.6(b)(2), MRPC, practitioners do not need to obtain informed consent from their clients to post about that client's matter on a Listserv®. Practitioners should note that Minnesota's exceptions to an attorney's confidentiality obligation differ from the exceptions in Model Rule 1.6.

Comment

The American Bar Association recently opined in Formal Opinion 511R that, under Model Rule 1.6, informed consent of a client is required when posting questions or comments to a Listserv® relating to a representation of the client. The ABA's opinion is quite broad, prohibiting posts "in hypothetical or abstract form, without the client's informed consent if there is a reasonable likelihood that the lawyer's questions or comments will disclose information relating to the representation that would allow a reader then or later to infer the identity of the lawyer's client or the situation involved." (ABA Formal Opinion 511R at 1.)

In view of Rule 1.6(b)(2) of the Minnesota Rules of Professional Conduct, the Minnesota Lawyers Professional Responsibility Board opines that American Bar Association Formal Opinion 511R regarding the confidentiality obligations of lawyers posting to a Listserv® is not applicable to the Minnesota Rules of Professional Conduct.

Rule 1.6, MRPC, first establishes a baseline general obligation of confidentiality. Rule 1.6(a), MRPC, states:

Except when permitted under paragraph (b), a lawyer shall not knowingly reveal information relating to the representation of a client.

Rule 1.6(b), MRPC, then provides for qualified exceptions to the general confidentiality obligation where a lawyer may reveal information relating to the representation of a client. Relevant here is the exception at Rule 1.6(b)(2), MRPC, which states:

(b) A lawyer may reveal information relating to the representation of a client if:
…
(2) the information is not protected by the attorney-client privilege under applicable law, the client has not requested that the information be held inviolate, and the lawyer reasonably believes the disclosure would not be embarrassing or likely detrimental to the client;

Rule 1.6(b)(2), MRPC, as presented above, was adopted by the Minnesota Supreme Court in 2005. This clause was implemented to remove the previous language of "confidence" and "secret" that was used throughout the rule to describe the scope of information protected under Rule 1.6.

Prior to 2005, Rule 1.6(a), MRPC (2004), stated:

(a) Except when permitted under paragraph (b), a lawyer shall not knowingly:
(1) reveal a confidence or secret of a client;
(2) use a confidence or secret of a client to the disadvantage of the client;
(3) use a confidence or secret of a client for the advantage of the lawyer or a third person, unless the client consents after consultation.

Prior to 2005, Rule 1.6(d), MRPC (2004), stated:

"Confidence" refers to information protected by the attorney-client privilege under applicable law, and "secret" refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.

Prior to 2005, the comment titled "Authorized Disclosure" to Rule 1.6, MRPC (2004), stated in part:

A lawyer must always be sensitive to the client's rights and wishes and act scrupulously in making decisions which may involve disclosure of information obtained in the professional relationship. Thus, in the absence of the client's consent after consultation, a lawyer should not associate another lawyer in handling a matter; nor, in the absence of consent, seek counsel from another lawyer if there is a reasonable possibility that the client's identity or confidences or secrets would be revealed to that lawyer. Both social amenities and professional duty should cause a lawyer to shun indiscreet conversations concerning clients.

(emphasis added). Comparing the pre-2005 language the current language of Rule 1.6, MRPC, shows that the "scope of information" protected under this rule was previously provided for in Rule 1.6(d) (2004) as a definition. This limitation on scope was then amended into Rule 1.6(b)(2) as a qualified exception.

Comment [4] to Rule 1.6, MRPC, states:

Paragraph (a) prohibits a lawyer from revealing information relating to the representation of a client. This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. A lawyer's use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved.

(emphasis added). What the language of Rule 1.6, as amended, demonstrates, is that Minnesota takes a measured, practical approach to client confidentiality as compared to the more restrictive ABA Model Rule.

Rule 1.6, MRPC, allows a lawyer to reveal certain information relating to the representation of a client if it is not privileged, held inviolate, or reasonably believed to be embarrassing or likely detrimental to the client. The ABA does not have an equivalent clause under Rule 1.6 of the Model Rules of Professional Conduct that allows for the disclosure of this type of information. Therefore, the ABA's guidance in Formal Opinion 511R on the confidentiality obligations of lawyers posting to a Listserv® is overly restrictive compared to what is allowed in Minnesota under Rule 1.6(b)(2), MRPC.

We recognize that other jurisdictions have found ethics violations for lawyers who post on Listservs® or other public forums. See In re Peshek, M.R. 23794, 09 CH 89 (May 18, 2010); Office of Lawyer Regulation v. Peshek, 334 Wis.2d 373, 798 N.W.2d 879 (2011) (lawyer published a public blog containing confidential information about her clients and for failing to inform a court of a client's misstatement of fact); In Re Quillinan, 20 DB Rptr. 288 (2006) (lawyer revealing client confidences on a bar Listserv where two aggravators and three mitigators applied); In re Tsamis, No. 2013PR00095, Ill. Att'y Registration & Disciplinary Comm'n (Jan. 15, 2014) (lawyer published adversarial response to negative review); People v. Isaac, 470 P.3d 837, 839 (Colo. O.P.D.J. 2016) (lawyer responded to negative review and listed specific client information). However, in each of those instances, the lawyers would also have violated Rule 1.6(b)(2), MRPC, because the information posted was protected by the attorney client privilege, was embarrassing to the client, or breached other confidentiality obligations. As such, we do not find that those precedents weigh on the proper application of Rule 1.6, MRPC to Listservs®.

Adopted: January 20, 2025