My Two Cents: Lawyers Need to Remember to Navigate Ethical Boundaries When Using Listservs: ABA's Guidance on Client Information Sharing.

/ The Tech-Savvy Lawyer.Page/

Lawyers need to maintain client confidentiality when talking with colleagues in online forums.

The legal profession's reliance on technology continues to grow, facilitating collaboration and knowledge sharing among practitioners. Listservs, e.g., the American Bar Association's (ABA) own “solosez”, serve as an excellent medium for lawyers to discuss day-to-day law office management concerns, legal issues, and even their own cases.  But, when doing so, lawyers must still remember to keep their (former or current) client’s confidentiality when using these public forums.

The ABA recently issued Formal Opinion 511 to address ethical concerns surrounding the dissemination of client information on listservs and similar platforms.  The opinion emphasizes the need for lawyers to exercise caution when discussing client matters online, even in closed forums intended for professional discourse. Revealing confidential client information without proper consent can violate the duty of confidentiality enshrined in Model Rule 1.6.

While listservs offer a valuable resource for seeking guidance from peers, the ABA underscores that lawyers must refrain from disclosing information that could reasonably lead to the identification of a client. This includes details about the client's identity, legal issues, or other specifics that may compromise confidentiality.  But to emphasize the point of the opinion, it’s not just keeping confidential the identity, legal issues, or other specifics that may compromise confidentiality; this includes any information that could reasonably lead to the identification of a client.

To strike a balance between confidentiality and the benefits of professional collaboration, the opinion suggests several best practices:

Lawyers need to maintain client confidentiality with even some of the most minute details if it could “reasonably” reveal the client when talking with colleagues in online forums.

  • Anonymization: Lawyers should carefully anonymize client information by removing identifiers and altering specific facts to prevent inadvertent disclosure;

  • Client Consent: Obtaining the client's informed consent before sharing any details about their matter is the safest approach, though not always practical.

  • Forum Vetting: Evaluate the listserv's membership, policies, and security measures to ensure it provides adequate safeguards against unauthorized access or dissemination of shared information.

  • Contextual Consideration: Assess the sensitivity of the client's matter and the potential risks of disclosure before deciding whether to share information on a listserv.

In today’s social media age, it is easy for people to feel anonymous online. This can lead some people to let their safeguards down and reveal too much personal information. Or, quite frankly, say things they would not say to others in public.  Lawyers, too, need to ensure they are not revealing client information that may breach their ethical obligations to their clients (both current and former).

So, I’d like to repeat myself from above, while digital platforms facilitate knowledge sharing and professional development, lawyers must exercise vigilance to protect client confidentiality.  By adhering to the ABA's guidance and implementing robust safeguards, lawyers can leverage the benefits of online collaboration while upholding their ethical duties. Striking this balance is crucial for maintaining public trust and preserving the integrity of the legal profession in the digital age.

MTC.