Client Confidentiality In The LISTSERV Age.

Atty. Jim Burke

Most lawyers are careful to protect client confidences, but that is becoming more and more difficult to do. These days lawyers, especially those practicing alone or in small firms, often discuss their cases with their peers in other firms. It’s not uncommon for a lawyer to call a friend and run down a set of facts to get some extra input, and some lawyers post fact patterns on LISTSERVs and seek the advice of other practitioners about what to do.

This business of reaching outside one’s own office for practice advice is a growing trend, and I think there are a couple of causes. One is the proliferation of social media. With instant messaging, facebook, and LISTSERVs available, it’s easier to communicate than it used to be. Another is the shrinking availability of associate positions in the legal labor market. Established firms are hiring fewer and fewer associates, and more and more young lawyers are hanging out their shingles. They need advice from somewhere, and fellow lawyers (mentors and practice group members) are usually the best option.

This trend of sharing information about cases outside the firm carries with it a risk of disclosure of client confidences. Until recently lawyers have had to find their own way on the question of how much information can be shared with another lawyer without the client’s informed consent. There hasn’t been much guidance from the ABA or state bar associations other than Model Rule 1.6 and ABA Ethics Opinion 98-411, and this guidance is dated. In my own work as a freelance lawyer I have taken a very conservative line. I discuss with hiring lawyers only hypothetical facts until they decide to hire me, bind me contractually to keep their client’s confidences, and make the necessary disclosure to the client. This is a nice, safe approach, and I have found that it creates no problems for me or the hiring attorney.

Recently, the Ethics Committee of the Oregon Bar Association issued an opinion (No. 2011-184), and this appears to be the first opinion of it’s kind to deal with both confidentiality and conflicts of interest in this modern era of mentoring programs and LISTSERVs. As to confidentiality, this opinion comes down squarely where I would have expected. The committee makes it clear that the best approach is to keep all extra-office discussions on a purely hypothetical basis, taking great care to disclose nothing from which the identity of the client can be inferred. This is a good rule, especially these days. Once something is texted, emailed or LISTSERVed, it is out there forever. I think other bar associations around the country will soon get around to dealing with client confidentiality in the era of social media; and when they do, I think they’ll follow Oregon’s lead.

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