Can an Oregon lawyer use a client's name or matter in marketing, a CLE, or to confirm a public news story without consent?

Plain-English summary

The opinion considers three lawyers who want to discuss a current or former client's matter for their own benefit: Lawyer A pitching a new client by describing work on a publicly reported appeal; Lawyer B describing a publicly reported acquisition in a CLE; and Lawyer C asked to confirm the accuracy of a news article about a former client's arrest learned during an unrelated representation. The opinion concludes that for Lawyers A and B disclosure is permitted with informed consent, and without consent it depends on whether the information falls outside RPC 1.0(f), is impliedly authorized, or fits an RPC 1.6(b) exception; for Lawyer C the answer is no without informed consent, because confirming the arrest is likely detrimental or embarrassing to the former client.

The core holding is about the breadth of Oregon RPC 1.6(a), which bars revealing "information relating to the representation of a client" absent informed consent, implied authorization, or a 1.6(b) exception. The opinion concludes the duty applies equally to current, prospective, and former clients, and that RPC 1.0(f) defines protected information broadly: it covers not only privileged information but any information gained in the relationship that the client asked be kept inviolate or whose disclosure would be embarrassing or likely detrimental, including something as innocuous as the client's identity. Relying on In re Conry, the opinion concludes Oregon has no exception for "generally known" or publicly available information; whether the lawyer "reveals" information turns on the knowledge of the audience, not on whether the information is technically public. The opinion concludes the RPC 7.1 to 7.3 advertising rules do not authorize using protected client information for the lawyer's benefit, so a lawyer wanting to use a client's name or matter in marketing should obtain informed consent. It recognizes a "hypothetical exception": a lawyer may discuss a matter abstractly where there is no reasonable likelihood the audience could identify the client or situation.

In practice

Under this opinion, an Oregon lawyer who wants to use a client's name, identity, or matter for the lawyer's own benefit, whether in a marketing pitch, a CLE war story, or by confirming a public news report, is acting within the rules only with the client's informed consent, unless the disclosure is impliedly authorized or fits an RPC 1.6(b) exception. The opinion concludes the publicly reported nature of a matter does not relieve the lawyer of the confidentiality duty, because Oregon recognizes no generally-known exception. A lawyer may instead use an abstract hypothetical that does not allow the client to be identified.

The opinion lists the questions a lawyer should run through before disclosing: whether the client's identity is ascertainable, whether the information relates to the representation, whether the client gave informed consent, and whether an RPC 1.6(b) exception applies.

Common questions

Q: Can an Oregon lawyer mention a client by name in marketing or a pitch?

A: Not without informed consent. The opinion concludes the advertising rules (RPC 7.1 to 7.3) do not authorize using protected client information for the lawyer's benefit, so a lawyer wanting to use a client's name or matter in marketing should obtain the client's informed consent.

Q: If a case was publicly reported, can the lawyer talk about it freely?

A: No. The opinion concludes Oregon has no generally-known or public-information exception; whether the lawyer "reveals" information turns on the audience's knowledge, not whether the information is technically public, so the lawyer may still be disclosing protected information.

Q: Can a lawyer use a client matter as a CLE example?

A: With consent, yes. Without consent, the opinion concludes the lawyer may use an abstract hypothetical only if there is no reasonable likelihood the audience could identify the client or situation; otherwise informed consent is required.

Q: Can a lawyer confirm a news story about a former client's arrest?

A: No, not without informed consent. The opinion concludes confirming the arrest is likely detrimental or embarrassing to the former client, so it is protected information that the lawyer may not reveal.

Background and rules framework

The opinion interprets Oregon RPC 1.6 (confidentiality) and its RPC 1.0(f) definition of "information relating to the representation," along with RPC 1.18 (prospective clients) and RPC 1.9(c) (former clients), and the advertising rules RPC 7.1 to 7.3. These track Model Rules 1.6, 1.9, and 1.18. The analysis centers on the Oregon Supreme Court's decision in In re Conry and contrasts Oregon with jurisdictions that recognize a generally-known exception.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 1.6 / Model Rule 1.6 (confidentiality)
• Oregon RPC 1.0(f) (information relating to the representation)
• Oregon RPC 1.18 / Model Rule 1.18 (prospective clients); RPC 1.9(c) / Model Rule 1.9 (former clients)
• Oregon RPC 7.1, 7.2, 7.3 / Model Rule 7.1 (advertising)

Cases:

• In re Conry, 368 Or. 349, 491 P.3d 42 (2021), scope of confidentiality and "revealing" information
• In re Huffman, 328 Or. 567, 983 P.2d 534 (1999), disclosure to a client's new attorney as a violation

Other opinions cited:

• ABA Formal Op. 479 (2017): the generally-known exception
• ABA Formal Op. 511 (2024): listserv inquiries
• OSB Formal Op. 2022-201: responding to negative online reviews
• OSB Formal Op. 2011-184: disclosure on legal listservs

See also

• ABA Formal Op. 480: Confidentiality in Blogging and Public Commentary
• ABA Formal Op. 479: Generally Known Exception for Former Clients
• ABA Formal Op. 511: Confidentiality in Posting to Listservs
• ABA Formal Op. 496: Responding to Online Criticism

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2024-204.pdf