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Know your listserv limitations

Special to the News Columns

On May 8, 2024, the ABA Standing Committee on Ethics and Professional Responsibility released a seven-page Formal Opinion 511R: Confidentiality Obligations of Lawyers Posting to Listservs. The opinion’s summary is provided below (including a notation that “Listserv” is a registered trademark):

Rule 1.6 prohibits a lawyer from posting questions or comments relating to a representation to a listserv, even in hypothetical or abstract form, without the client’s informed consent 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.

*Listserv® is a registered trademark. When the word listserv is used in this opinion, it is intended to describe and apply to any electronic-based discussion group and/or email community.

You may have learned about this opinion through one of your own listservs or other legal discussion boards, as it raises serious concerns particularly in those forums. The opinion lays out what may appear to amplify an attorney’s confidentiality requirements related to questions and hypothetical fact patterns posted to a listserv-type-group, which consists of non-firm-member colleagues. The opinion goes on to warn lawyers about not only in submitting forum-based inquiries, but also in replying to others, developing networks, and regaling war stories.

Robert W. Borr

Robert W. Borr

The opinion focuses on the risk of a client’s identity being revealed, as noted here: “[a]dditionally, when lawyers represent only one client (as in the case of in-house counsel or government lawyers) or their client’s identity can be readily inferred (as in the case of a litigator seeking assistance with a pending or contemplated action), a description of specific facts or hypotheticals that are easily attributable to the client likely violates Rule 1.6 in most contexts.” This appears to be a per se limitation for any attorney who represents a single client.

The Confidentiality of Information rule comments found in both the ABA Model Rules of Professional Conduct and the Florida Rules of Professional Conduct contain similar statements regarding Authorized Disclosure:

“Except to the extent that the client’s instructions or special circumstances limit that authority, a lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation.” (emphasis added).

The opinion addresses several citations of legitimate impliedly authorized disclosures, none of which are instances related to listservs.

Both sets of rules also contain exceptions (such as to prevent death) when it comes to disclosing confidential information. The opinion does not provide detailed analysis of the ABA confidentiality exceptions, as the opinion notes the committee “cannot envision a recurring situation in which any of the exceptions are likely to authorize disclosures of information relating to a representation on a lawyer’s listserv.”

While the opinion is not binding on Florida practitioners, there is a relevant Florida exception that does not exist in the ABA rules:

“A lawyer may reveal confidential information to the extent the lawyer reasonably believes necessary to: (1) serve the client’s interest unless it is information the client specifically requires not to be disclosed[.]”

Rule 4-1.6(c)(1)

This Florida exception is distinguished from those within the ABA Model Rules, and may very likely impact the language of Formal Opinion 511R, if a similar rule existed in the ABA Model Rules. The opinion highly praises the use of listservs and group forums, within the guidelines of confidentiality. It is important for Florida practitioners to be mindful of the rules, and post appropriately.

Robert W. Borr is a Florida Supreme Court certified circuit court mediator and serves as a vice chair of The Florida Bar Professional Ethics Committee.

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