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Ethics Corner - To Blog or Not to Blog

Ethics Corner is an ongoing column exploring various ethical topics relevant to attorneys general and other government attorneys. This is the second Ethics Corner column focusing on some aspect of social media use.

Many attorneys would agree that blogging[1] is a wonderful way to express thoughts on particular legal issues and establish credibility as an expert in your field. But could blogging (and posting and tweeting using Twitter) violate ethics rules? Most of the bar opinions that have come down on this issue consider blogs and other web posts to be informative and educational in nature unless the blogger or poster promotes his or her skills so that the posting becomes a solicitation. Bar opinions on this issue, such as New York State Bar Association Ethics Opinion 967 (2013) and Philadelphia Bar Association Opinion 2010-6, focus on blogs and the ethics rules on advertising, but perhaps the biggest risk for a government attorney blogger is violating the rules on client confidentiality.

Most attorneys zealously protect client files, carefully control communication with the client, watch what they say to others, and otherwise take care to safeguard the confidentiality of their client relationships. So one would think the same care should apply online. However, the Internet and, particularly social media such as a blog, Twitter, Instagram and Facebook, often tempt even the most judicious to throw caution to the wind. Social media tools like blogs are much more personal and immediate and one often feels the need to post quickly before someone else does, making it much more likely that the poster may divulge more than the rule of confidentiality allows. And because that post is online, the effect of the breach of confidentiality is more widespread and stark.

A lawyer who discusses his or her case on Twitter, Facebook, or a blog risks violating the rules of client confidentiality. Unfortunately, it doesn’t take that much to do so –- an attorney could easily breach client confidentiality by tweeting about what he or she is doing at the time. Let’s look at an example. What if your colleague tweets, “Case is over – waiting on the court to approve the settlement.” Does that potentially run afoul of the Rules? Yes, because Model Rule 1.6 states that a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent. Rule 1.6 requires that the lawyer preserve even public information about the client without consent. This is especially difficult to swallow when that same information can be blogged or tweeted by a reporter or another blogger.

Blogging or posting about a case can be a risky tactic even if the case or client is not identified in the post. Comment 4 of Model Rule 1.6 states that the prohibition against revealing client confidential information also applies to disclosures by a lawyer that do not in themselves reveal protected information but could lead to the discovery of such information by a third party.

So what alternatives do you have when writing your blog? You could, of course, seek consent from your client. Note that the Model Rules provide that “informed consent” means agreement by the client after you have communicated sufficient information about the risks of and feasible alternatives to the course of action you are proposing. In lieu of that, you could blog about other cases, for which you have no duty of confidentiality, and which is the path taken by most lawyer bloggers.

The bottom line: there is plenty to blog about without discussing your own case!

 

[1] A blog, short for weblog, is a website run by an individual or small group where brief entries are usually presented in reverse chronological order, with the newest entry first. The content can be news, commentary, photos, video or any such combination and is typically offered in an informal or conversational style. An update to a blog is a blog post or blog entry. Examples include the U.S. attorney general blog, the Supreme Court of the United States blog and law blog from The Wall Street Journal.

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