Can a lawyer write and publish an article about legal issues from a former client's case?

Plain-English summary

The inquirer represents one partner (Client A) in a contentious business dissolution that raised several interesting legal issues. He also writes on legal topics and wants to publish an article about the case from a strictly intellectual perspective, after the proceeding concludes. Client A is wary of publicity and believes it could harm his reputation. The inquirer asks whether he may publish.

The opinion first sorts out which duties apply. Rule 1.1(c)(2) (not prejudicing the client) and Rule 1.8(b) (not using client information to the client's disadvantage) apply only to current clients. Once the matter ends, the governing rule is Rule 1.9(c), which prohibits using or revealing a former client's confidential information protected by Rule 1.6. Whether someone is still a current client is a mixed question of fact and law the committee cannot resolve, but it notes a representation often ends when its purpose is accomplished (citing N.Y. State 1008); the opinion proceeds on the assumption that Client A is now a former client.

Applying Rule 1.6, the opinion explains that "confidential information" excludes the lawyer's legal knowledge or research and information that is "generally known." An article confined to legal issues that omits or masks the client's facts should not violate Rule 1.6, provided the lawyer has not agreed to keep the research confidential and readers cannot identify the client (citing N.Y. State 1026's masking standard). Critically, the opinion holds that pleadings and other court-file documents are not "generally known" simply because they are in a public file; information is generally known only if known to a sizeable percentage of the relevant community (citing N.Y. State 991 and 1057). Finally, the opinion states a lawyer may not write an article that attacks or undermines the legal work done for the former client.

In practice

Under this opinion, conduct that involves a lawyer publishing, after the matter ends, an article that addresses legal issues from a strictly intellectual perspective without disclosing non-generally-known facts (where the lawyer has not agreed to keep the material confidential) does not violate Rule 1.9(c). Per the opinion, if the article uses facts from the client's matter, the lawyer must ensure readers cannot identify the client, and the lawyer may not write an article that attacks or undermines the work done for the former client.

Common questions

Q: Can a lawyer publish an article based on a former client's case?

A: Per the opinion, yes, once the representation has ended, provided the article does not reveal confidential information without the client's consent. Rule 1.1(c) and Rule 1.8(b) restrict only current-client situations.

Q: Are facts in the court file "confidential information"?

A: Per the opinion, yes, generally. Citing Comment [4A] to Rule 1.6 and N.Y. State 991 and 1057, information is not "generally known" simply because it is in a public file; it must be known to a sizeable percentage of the relevant community.

Q: Can the lawyer at least discuss the legal issues themselves?

A: Per the opinion, yes. A lawyer's legal knowledge or legal research is not confidential information, so an article restricted to legal issues that omits or masks the client's facts does not run afoul of Rule 1.6.

Background and rules framework

The opinion interprets New York Rule 1.6 (confidential information, including its definition and the "generally known" exception), Rule 1.9(c) (former-client confidentiality), Rule 1.1(c)(2) and Rule 1.8(b) (current-client duties), and Rule 7.1(r) (encouraging lawyers to write and speak on legal topics). These correspond to ABA Model Rules 1.6 and 1.9.

Citations and references

Rules of Professional Conduct:

• New York Rules of Professional Conduct 1.1(c), 1.6(a), 1.7(a) & (b), 1.8(b), 1.9(c), 7.1(r)
• ABA Model Rules 1.6, 1.9 (analogues)

Cases:

• Revise Clothing, Inc. v. Joe's Jeans Subsidiary, Inc., 687 F. Supp. 2d 381 (S.D.N.Y. 2010), how an attorney-client relationship terminates
• Miller v. Miller, 203 A.D.2d 338, 610 N.Y.S.2d 88 (2d Dep't 1994), relationship ends when the matter concludes

Other opinions cited:

• N.Y. State 1008 (2014): when a current client becomes a former client
• N.Y. State 991 (2013); 1057 (2015): meaning of "generally known"; court files are not generally known
• N.Y. State 1026 (2014); N.Y. State 1251 (2023): masking client facts; lawyers writing on legal topics
• ABA 479 (2017): the "generally known" exception

See also

• NYSBA Ethics Op. 1251: Lawyer YouTube Channels
• NYSBA Ethics Op. 1287: Whistleblower Using a Former Client's Confidences
• NYSBA Ethics Op. 1265: Former Legal Aid Lawyer Conflicts

Source

• Landing page: https://nysba.org/ethics-opinion-1268-confidential-information/