February 2013 - Social Networking and the Ethical Duty of Confidentiality
by Joel M. Pores
Our California Constitution, as adopted in 1849, provides at Article I Section I that: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness and privacy.” Privacy is enumerated and as important as any of our other inalienable rights. However, since the beginning of our technological age we have steadily lost our privacy rights. Scott McNealy, the CEO of Sun Microsystems as far back as 1999 told us all, “You have zero privacy anyway. Get over it.” The erosion of privacy has occurred for both attorney and client, although the client is not restrained by rules of professional conduct.
Social networking is highly touted as a great way for lawyers to generate new business. Lawyers engaged in social networking must be concerned about their duties under the California Rules of Professional Conduct of the State Bar of California (CRPC), Rule 1-400 (2012), and the California Business & Professions Code (Cal. Bus. & Prof. Code) §§ 6106, 6151, 6152, and 6157 through 6159.2 (West 2012) regarding Advertising and Solicitation. Problems surrounding social networking and lawyer advertising and solicitation are fully discussed by the State Bar of California Standing Committee On Professional Responsibility And Conduct (COPRAC) in Draft Formal Opinion Interim No. 10-0001 and are beyond the scope of this article.
The focus of this article is on the duty of an attorney pursuant to CRPC Rule 3-100 regarding the “Confidential Information of a Client” and with that same duty as provided for in Cal. Bus. & Prof. Code § 6068 (e)(1) “Duties of an Attorney.”
CRPC Rule 3-100 provides that a lawyer “shall not reveal information protected from disclosure by Business and Professions Code § 6068 (e)(1) without the consent of the client” unless the attorney believes it necessary to prevent a criminal act leading to death or substantial bodily injury. Section 6068 (e)(1) of the Business and Professions Code provides, “It is the duty of an attorney to . . . maintain inviolate the confidences, and at every peril to himself or herself to preserve the secrets of his or her client.” Both privileged information and “secrets” are protected under this wide umbrella. An attorney may violate the duty of confidentiality even while the attorney-client privilege is still maintained, as secrets obtained from any source during the course of representation fall within the lawyer’s duty of confidentiality to the client, whereas only communications between the attorney and client are privileged.
War Stories or Confidential Information?
The troublesome area for most lawyers networking socially who love to share war stories is the concept and definition of what is a “secret.” This word has been interpreted by various bar association opinions as “information gained during the course of engagement that the client has requested be held strictly confidential, or the disclosure of which would be embarrassing or likely detrimental to the client.” Cal. State Bar Formal Ops. 1993-133, 1988-96, 1986-87, 1981-58 & 1980-52; Los Angeles Cnty. Bar Ass’n Formal Ops. 386 (1980), 409 (1983), 452 (1988).
The definition does not resolve the question of what may be “embarrassing or likely detrimental to the client.” What may be embarrassing for one client may be a badge of courage for another. What is detrimental to one may be a positive review for another. How do we as lawyers determine what may be appropriate to say about our cases and our clients when interacting in this not-so-private world of social media?
War stories told by lawyers are common fare, and the source of great pride for most practitioners. But are the clients’ identities properly disguised? Are the facts so specific as to make the parties readily identifiable? What degree of detail may the lawyer share in a posting on a blog or in a mass email? Is there a description followed by a statement that the matter is one of public record for all to see so that the lawyer then feels empowered to tell all? Even if the alleged facts or information are a matter of public record, it is very possible that they are not widely known or fully described, and therefore may still qualify as a “secret.” The fact that something may be in the public domain does not create a license to disclose or discuss what was observed or learned only as a result of the attorney-client relationship.
Lawyer’s Bragging Rights versus Client’s Embarrassing Secret?
Let’s take the hypothetical attorney who wants to tell everyone to whom he or she is connected on LinkedIn (or who is a friend on Facebook or a follower on Twitter) about a recent victory for the defense in an action for patent infringement, or for fraud, or professional negligence. The analysis must necessarily start with a determination of whether the initial allegations against the client could be considered a “secret” of the client. If made in confidence, the answer is definitely in the affirmative. In any statement posted by counsel, if there are no names named so that the client is not identified, and the facts are changed to such a degree as to adequately disguise the identities of the guilty or the innocent, the posting may not disclose confidential information.
Perhaps a plaintiff’s lawyer has just won or settled a case for someone who was allegedly cheated by an unscrupulous agent or securities dealer, or a victim who was beaten, or who claimed to have been molested. The client could truly be embarrassed to be a victim despite the victorious result or huge settlement that may not necessarily be detrimental to them if it were standing alone. Mentioning a huge settlement recovery for a client may put the client in jeopardy with thieves or malintents.
Fighting Fire with Fire?
What if the client posts an unflattering review of former counsel on the social web that describes the attorney as greedy, or uncaring, or unkempt, or renders other opinions about counsel or the quality of the attorney’s services? May counsel respond, and if so to what degree? By analogy, the analysis may appear similar to disclosure of information in connection with an attorney’s defense to a fee arbitration claim or in defense of a complaint for legal malpractice. In those cases, although an attorney may disclose some confidential information, the attorney must keep within the lines of the controversy and not stray into areas unrelated to the issues at hand. Cal. Bus. & Prof. Code § 6068 (e) (West 2012); Cal. Evid. Code § 958 (West 2012); Los Angeles Cnty. Bar Ass’n Formal Op. 396 (1982), 452 (1988); Brockway v. State Bar, 53 Cal. 3d 51, 63 (1991).
A recent opinion by the Los Angeles County Bar Association Professional Responsibility And Ethics Committee No. 52 rendered Dec 6, 2012 addressed the ethical duties of lawyers in connection with adverse comments published by a former client in a non-litigation context and concluded that the attorney may respond to an accusation of malpractice and overbilling as long as the response does not disclose confidential information, does not injure the former client in the matter involving the former representation, and the attorney’s response is proportionate and restrained. Los Angeles Cnty. Bar Ass’n. Formal Op. 52 (2012) (citing Cal. Bus. & Prof. Code § 6068(e) (West 2012); Los Angeles Cnty. Bar Ass’n Formal Op. 396 (1982), 452 (1982), 498 (1999) and 519 (2007); State Bar Form Op. 1983-71 (1983); California Rules of Prof’l Conduct, Rule 3-100 (A) (2012); and ABA Model Rules of Prof’l Conduct R. 1.6(b)(5) (2004)).
Thus, in our hypothetical, it may be proper for the lawyer to say the client’s perceptions are incorrect, but impermissible for the lawyer to go on the attack and call the client a less than credible witness “as the court determined” in the matter worked on. Such an attack may violate the duty of confidentiality as well as the duty of loyalty to one’s client.
Other confidentiality breaches may occur without your knowing you have done so. How about working while in transit? In conference calls? By talking in the elevator or on cell phones? Mind the secrets of your clients as you would your own. The Privacy Enforcement and Protection Unit of the State Department of Justice was created and announced by Attorney General Kamala Harris on July 19, 2012 to “police the privacy practices of individuals and organizations to hold accountable those who misuse technology to invade the privacy of others.” Lawyers need to be cognizant of their ethical and civil duties to their clients, and need to be mindful of the civil and administrative penalties for legal malpractice claims and for discipline, all due to these potential breaches of their fiduciary duty to their clients based upon the lawyer’s duty of confidentiality and the clients’ inalienable right of privacy.
Joel M. Pores is a sole practitioner and member of the OCBA Professionalism & Ethics Committee. He can be reached at email@example.com.
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