Ethical Blogging

The American Bar Association Standing Committee on Ethics and Professional Responsibility recently issued Formal Opinion 480 which opines on the ethics of lawyers blogging and comment on social media. Formal Opinion 480, entitled “Confidentiality Obligations for Lawyer Blogging and Other Public Commentary,” applies existing ethical rules to new online publications such as lawyer blogs. Excerpts from the opinion follow:

Lawyers comment on legal topics in various formats. The newest format is online publications such as blogs, listserves, online articles, website postings, and brief online statements or microblogs (such as Twitter®) that “followers” (people who subscribe to a writer’s online musings) read. Lawyers continue to present education programs and discuss legal topics in articles and chapters in traditional print media such as magazines, treatises, law firm white papers, and law reviews. They also make public remarks in online informational videos such as webinars and podcasts (collectively “public commentary”).

Lawyers who communicate about legal topics in public commentary must comply with the Model Rules of Professional Conduct, including the Rules regarding confidentiality of information relating to the representation of a client. A lawyer must maintain the confidentiality of information relating to the representation of a client, unless that client has given informed consent to the disclosure, the disclosure is impliedly authorized to carry out the representation, or the disclosure is permitted by Rule 1.6(b). A lawyer’s public commentary may also implicate the lawyer’s duties under other Rules, including Model Rules 3.5 (Impartiality and Decorum of the Tribunal) and 3.6 (Trial Publicity).

Online public commentary provides a way to share knowledge, opinions, experiences, and news. Many online forms of public commentary offer an interactive comment section, and, as such, are also a form of social media. While technological advances have altered how lawyers communicate, and therefore may raise unexpected practical questions, they do not alter lawyers’ fundamental ethical obligations when engaging in public commentary.

The formal opinion concludes as follows:

Lawyers who blog or engage in other public commentary may not reveal information relating to a representation that is protected by Rule 1.6(a), including information contained in a public record, unless disclosure is authorized under the Model Rules.

Formal Opinion 480 – Confidentiality Obligations for Lawyer Blogging and Other Public Commentary is annexed below –

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(Adapted from an article on the Legal Profession Blog, a great source of information on our ever-evolving legal profession.)

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