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ABA issues ethics guidance on a lawyer’s use of listservs, particularly for pending matters

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ABAThe ABA Standing Committee on Ethics and Professional Responsibility released a formal opinion that provides guidance for when a lawyer can seek advice on a listserv, noting that model rules in most cases forbid posting questions or comments relating to a representation — even in hypothetical or abstract form.

Formal Opinion 511 cites Rule 1.6 on confidentiality of the ABA Model Rules of Professional Conduct to say use of a listserv, beyond enabling lawyers to “keep abreast of changes in the law and its practice,” and seeking advice about a client matter would require a client’s informed consent in most cases.

Florida Bar Ethics Counsel Jonathan Grabb said the ABA’s new opinion is in line with The Florida Bar’s guidance on the subject.

Seeking advice on a listserv would be unethical, the opinion said, “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.”

“A lawyer may, however, participate in listserv discussions such as those related to legal news, recent decisions or changes in the law, without a client’s informed consent if the lawyer’s contributions will not disclose, or be reasonably likely to lead to the disclosure of, information relating to a client representation,” it added.

The listserv opinion drew from several prior ABA formal opinions dating back to 1998, as well as recent bar opinions in Oregon and Maryland. Those state opinions spotlighted the value of listservs to lawyers to test their understanding of legal principles and to clarify the best way to proceed in unique situations.

But the ABA opinion emphasized “the more unusual the situation … the greater the risk that the client can be identified, and therefore the greater the care that must be taken to avoid inadvertently disclosing client information protected by Rule 1.6.” It also said participation in most lawyer listserv discussion groups is “significantly different from seeking out an individual lawyer or personally selected group of lawyers practicing in other firms for a consultation about a matter.”

The standing committee periodically issues ethics opinions to guide lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior. Other recent ABA ethics opinions are available on the ABA website.

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