Proposed Advisory Opinion 25-1 regarding lawyers’ use of listservs
The Florida Bar’s Professional Ethics Committee has issued Proposed Advisory Opinion 25-1, reprinted below. Pursuant to Procedures 4(c) and (d) of The Florida Bar Procedures for Ruling on Questions of Ethics, comments from Florida Bar members are solicited on the proposed opinion. The committee will consider any comments received at a meeting on October 31, 2025. Comments must contain the proposed advisory opinion number and clearly state the issues for the committee to consider. A written argument may be included explaining why the Florida Bar member believes the committee’s opinion is either correct or incorrect and may contain citations to relevant authorities. Comments should be submitted to Jonathan D. Grabb, Ethics Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee 32399-2300, or emailed to [email protected], and must be postmarked no later than 30 days from the date of this publication.
PROPOSED ADVISORY OPINION 25-1
[DATE]
Online legal discussion groups and peer to peer listservs provide a valuable resource to participants because they facilitate contact with a focused community of experienced, knowledgeable practitioners. Listservs offer members access to up to date information regarding legal issues and quick feedback and responses from peers. Group discussions can provide useful exchanges regarding legal developments and significant court decisions.
The Professional Ethics Committee (PEC) has not previously offered guidance on participation in online discussion groups and listservs. Ethics opinions from several states and the American Bar Association (ABA) have addressed the use of online discussion groups and listservs and while acknowledging the benefits of participation, warn practitioners about the danger of revealing identifying information about clients. Their analysis is based on American Bar Associations (ABA) Model Rule 1.6, which permits disclosures impliedly authorized to carry out a representation. See ABA Formal Opinion 511R, Maryland Ethics Opinion 2015-03, Illinois Ethics Opinion 12-15, Texas Ethics Opinion 673 and Oregon Ethics Opinion 2011-184.
These opinions typically advise that, absent informed consent, discussions regarding clients should be general and abstract or posed as a hypothetical. However, the opinions recognize that in some situations even the use of hypotheticals may be inappropriate if the client’s identity could be surmised or the client could be prejudiced. For example, posts with unique facts, involving a high-profile matter, or within a small or specialized legal community may enable other lawyers, including opposing counsel, to deduce a client’s identity. The ABA opinion expresses specific concern about lawyers such as in-house counsel or government lawyers who represent only one client posting on listservs without client consent because the client’s identity would be obvious.
Lawyers who participate in group and listserv discussions must comply with the confidentiality rule, Rule 4-1.6 of the Rules Regulating The Florida Bar. This applies to practitioners who join in general discussions, make inquires, or provide advice. Rule 4-1.6 is very broad and provides that all information relating to a client’s representation is confidential and must not be voluntarily disclosed without either the client’s informed consent or the application of a relevant exception stated in the confidentiality rule. The comment to Rule 4-1.6 offers further guidance, stating that “[t]he confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.” Additionally, the comment explains that “[a] fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation.” The evidentiary concept of lawyer-client privilege, set forth in Florida Statutes § 90.502, is more limited and protects certain confidential communications made for the purpose of obtaining legal advice from compelled disclosure by other parties.
Rule 4-1.6(c)(1) provides that “[a] lawyer may reveal confidential information to the extent the lawyer reasonably believes it is necessary to … serve the client’s interest unless it is information the client specifically requires not to be disclosed[.]” This exception is not included in the ABA model rule. In effect, unless a client has instructed otherwise, a lawyer may disclose confidential information if the lawyer reasonably believes it will further the client’s representation. For example, lawyers generally have implied authorization to share information with other members of their law firm or to disclose information during negotiations that enable a satisfactory resolution. However, even when disclosure is permitted, Rule 4-1.6(f) notes that disclosure should be limited to “no more information than is required to meet the requirements or accomplish the purposes of this rule.”
In Florida Ethics Opinion 93-5, the committee concluded that although client consent is required to permit a title insurer to audit a lawyer’s general trust account, consent is not required for an audit of a special trust account used exclusively for transactions in which the lawyer acts as title or real estate settlement agent. The Committee distinguished the special trust account from general trust accounts finding that the audit served the clients’ interests because such audits “are necessary to ensure the safety of the funds deposited in the special trust account and thus facilitate a satisfactory conclusion for those whose funds are placed in the account.”
The Committee addressed trust account audits again in Florida Ethics Opinion 12-1, reiterating that informed consent is not required to allow a title insurer to audit a trust account holding funds solely for transactions insured by that title insurer because the audit would serve the clients’ interests. The committee advised, however, that a lawyer should “obtain each client’s informed consent before permitting multiple title insurers to audit a single trust account, even if that separate trust account was devoted exclusively to holding funds for clients’ real estate and title transactions, unless the lawyer reasonably concludes that the audits are necessary to serve the interests of the affected clients and the affected clients have not specifically prohibited disclosure of the information.”
The exception in Rule 4-1.6(c)(1) is also discussed in Florida Ethics Opinion 10-3, regarding the ethical obligations of a lawyer whose client is deceased. The opinion acknowledges the impossibility of seeking informed consent under the circumstances and advises that uncertainties about voluntary disclosure should be resolved in favor of nondisclosure. However, the opinion addresses various situations where disclosure to other parties may serve the decedent’s interests, such as providing information to the personal representative of the decedent’s estate. Conversely, information relating to a deceased client’s criminal representation generally should not be disclosed as it would not serve the decedent’s interests.
Most recently, Florida Ethics Opinion 24-1 addresses protecting confidential client information when using generative artificial intelligence. The opinion states, in pertinent part:
…Absent the client’s informed consent or an exception permitting disclosure, a lawyer may not reveal the information. In practice, the most common exception is found in subdivision (c)(1), which permits disclosure to the extent reasonably necessary to “serve the client’s interest unless it is information the client specifically requires not to be disclosed[.] Rule 4-1.6(c)(1). Nonetheless, it is recommended that a lawyer obtain the affected client’s informed consent prior to utilizing a third-party generative AI program if the utilization would involve the disclosure of any confidential information.
Rule 4-1.6(e) also requires a lawyer to make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the client’s representation…
In accord with our prior opinions, lawyers participating in listservs and discussion online groups may reveal client information only to the extent reasonably necessary to serve the client’s interests and only if the client has not directed otherwise. Prior informed consent is recommended if there is a reasonable possibility that the client could be identified, whether due to the content of the disclosure or the identity of the posting lawyer. In the absence of informed consent, posts regarding a client’s matter should be general and abstract so they do not risk exposure of any information beyond that which is necessary, such as the client’s identity. Uncertainty should be resolved in favor of nondisclosure.
