Nicole Black, BridgeTower Media Newswires
Lawyer-only online forums and listservs are commonplace. Often these forums are hosted by bar associations, but that's not always the case. Facebook, LinkedIn and Reddit private groups are often created by lawyers for lawyers. Because these groups are typically gated communities, lawyers can comfortably discuss a multitude of issues. Referral sources are sought, trending legal issues are mulled over and opinions are solicited regarding issues arising in a lawyer's practice.
It's the last topic that was addressed in a recent Texas ethics opinion. One issue considered in Opinion 673 (online: https:// www.legalethicstexas.com/Ethics-Resources/Opinions/Opinion-673) was whether it is ethical for lawyers to seek advice for the benefit of their clients from other lawyers outside of their firm in an online discussion group.
At the outset, the Professional Ethics Committee for the State Bar of Texas acknowledged that informal consultations with other attorneys occur often, both online and offline: "It is common for lawyers to have informal lawyer-to-lawyer consultations touching on client-related issues. Informal consultations may occur in a variety of situations, such as when a lawyer poses questions to a speaker at a CLE seminar, when a lawyer seeks advice from members of an online discussion group, or when a lawyer solicits the insight of a trusted mentor. Informal consultations allow lawyers to test their knowledge, exchange ideas, and broaden their understanding of the law, with the realistic goal of benefiting their clients."
However, the Committee emphasized that when doing so, it's important to have a full understanding of your ethical obligations, including the duty of client confidentiality. Importantly, not all consultations will involve a discussion of confidential information, such as "asking general questions about a particular statute, rule or legal procedure."
Of course, that's not always the case; on occasion, an attorney may "consider it necessary to provide a certain amount of factual context in order to frame the issue and obtain useful feedback." In those cases, whether the consultation occurs online or off, a lawyer must tread lightly and be fully aware of the ethical implications.
That being said, the Committee explained that, with limitations, doing so is permissible, even in the absence of consent from one's client: "It is the opinion of the Committee that Rules 1.05(d)(1) and (2) allow a lawyer to reveal a limited amount of unprivileged confidential information to lawyers outside the inquiring lawyer's law firm, without the client's express consent, when the inquiring lawyer reasonably believes that the revelation will further the representation by obtaining the responding lawyers' experience or expertise for the benefit of the client, and when it is not reasonably foreseeable that revelation will prejudice the client."
The Committee provided the following tips to assist lawyers in walking the fine line between a permissible consultation and one that impermissibly disclosed client confidences. First, it's important to limit the "consultation to general or abstract inquiries that do not disclose confidential information relating to the representation." If that's not possible, it's permissible to "reveal a limited amount unprivileged client information in a lawyer-to-lawyer consultation, without the client's express consent, when and to the extent that the inquiring lawyer reasonably believes that the revelation will benefit the inquiring lawyer's client in the subject of the representation." However, when doing so, it's necessary to use "a hypothetical that does not identify the client," otherwise doing so is unethical "if it is reasonably foreseeable that the disclosure of the information will harm, prejudice or embarrass the client."
So if you've ever wondered about the parameters of interacting ethically online in lawyer forums when discussing client hypotheticals, then some of your questions have been answered by this opinion. Not surprisingly, online discussions aren't treated differently than offline discussions for ethics purposes. After all, as I always say, the online is simply an extension of the offline.
That being said, online interactions are much more easily recorded for posterity's sake - and for review by an ethics committee. The lesson: Keep that in mind when engaging online, and err on the side of caution when seeking consultation regarding issues that may involve client confidences.
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Nicole Black is a director at MyCase.com, a cloud-based law practice management platform. She is also of counsel to Fiandach & Fiandach in Rochester and is a GigaOM Pro analyst. She is the author of the ABA book "Cloud Computing for Lawyers," coauthors the ABA book "Social Media for Lawyers: the Next Frontier," and co-authors "Criminal Law in New York," a West-Thomson treatise. She speaks regularly at conferences regarding the intersection of law and technology. She publishes three legal blogs and can be reached at niki@mycase.com.
Published: Wed, Oct 10, 2018
