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We all know attorneys can't disclose confidential information gained in the course of representation. But what about public, potentially embarrassing information about a client?
Can a lawyer forward an embarrassing blog post about a former client to her colleagues? Can an attorney publicly disapprove of a client's behavior, years after finishing representation? Or would such actions violate a lawyer's duty of confidentiality?
Keeping Secrets Means Keeping Even Public Information Secret
These questions were addressed by a recent formal ethics opinion from the California Bar. The precise issue was the duty a lawyer owed to current and former clients "to refrain from disclosing potentially embarrassing and detrimental information about the client, including publicly available information the lawyer learned during the course of his representation."
The answer: a lawyer cannot disclose client secrets. And that duty of confidentiality extends to beyond typical confidential information to encompass:
publicly available information that the lawyer obtained during the professional relationship which the client has requested to be kept secret or the disclosure of which is likely to be embarrassing or detrimental to the client.
"Even after termination of the attorney-client relationship," the California Bar writes, "the lawyer may not disclose potentially embarrassing or detrimental information" when that info was acquired by virtue of prior representation.
Think Twice Before Posting That to Facebook
So, how might that play out in real life? The opinion examines one possible scenario. An attorney represents a hedge fund manager against fraud claims. During representation, the lawyer shares a blog post written by one of the manager's past accusers' allegations against him.
Months after a non-confidential settlement and the end of representation, the attorney writes a letter to the Wall Street Journal, following coverage of the manager, saying she "did a great job" of getting the manager out of the lawsuit.
Years later, the manager is arrested for a DUI. The lawyer comments on that arrest on Facebook, calling drinking and driving irresponsible.
All but the Facebook post would constitute a violation of the lawyer's duty of confidentiality, according to the California Bar. That's because a lawyer's duty of confidentiality encompasses all "client secrets" obtained by virtue of representation, including detrimental or embarrassing facts that are publicly available. If a secret could cause a client harm or embarrassment, and that secret was learned during representation, it's best to keep mum.
A note of caution before you panic about all your past emails, however. California's attorney's ethics are a bit unique. California is the only state that has not adopted the ABA's Model Rules of Professional Conduct. As the Cal Bar's ethics opinion notes, ABA Model Rule 1.9 provides a bit more cushion for lawyers in the rest of the country, distinguishing between "publicly available" information and "generally known" information, which could provide attorneys elsewhere more of a cushion when it comes to discussing clients' embarrassments.