We have described the ABA’s Formal Opinion 480 as terrible, no good, and very bad. Other valid criticisms, some of which we have read elsewhere and some of which are our own, call the Opinion “stupefying,” “late to the party and miss[ing] the mark,” “far from persuasive,” “obviously mistaken,” and “a subversion of lawyer First Amendment rights.”
In our role as online legal content marketers, the very practical reality of Opinion 480 is something else.
Let’s Review the Train Wreck that is Formal Opinion 480
In Hunter, an attorney was accused of violating his duty of confidentiality to his clients by blogging about their cases for his firm’s website without their prior consent. The lawyer was reprimanded by the bar association, even though the information in the blog posts was publicly available, often in the form of published court opinions. The bar association conceded that, had the posts been published by anyone other than the lawyer, it would have been protected speech under the First Amendment. The Virginia Supreme Court sided with the lawyer and prohibited the bar association from reprimanding him over his blog posts.
The ABA didn’t like that.
It took 5 years, but the ABA responded with Opinion 480. The Opinion said that lawyers “may not reveal information relating to a representation, including information contained in a public record, unless authorized by a provision of the Model Rules.”
It is a categorical application of Model Rule 1.6(a), which deals with client confidentiality, to blogging and other forms of legal marketing.
It is also a categorical misapplication of the concept of revealing something. One cannot reveal that which has been revealed, like something in a public record.
It also betrays a categorical confusion on the ABA’s part when you consider that, in support of its prohibition against “revealing” public information, the ABA pointed to court opinions that specifically fought against the rationale that the ABA was using.
It’s just mind-boggling.
And Now for the Predictably Absurd Results
It should come as no surprise that we would get absurd results from a rule that is based on logic so twisted it makes contortionists cringe. As professional legal marketers, we’re seeing them, every day (the absurd results, not the cringing contortionists).
Chief, and perhaps most frustrating, among them: Law firms that represent a client cannot write about the outcome without the client’s permission, while other law firms can.
Imagine Lawyer A winning an appeal for Client X. The court publishes the opinion – it’s a public record. Lawyer M can write a legal blog about it. Lawyer A cannot, until they obtain informed consent from Client X. This is true, even if the blog post contains nothing that is not in the public record. This is true, even if both blog posts are identical.
Yes, it would be great to require that attorneys get informed consent from Client X before revealing continuing to spread potentially sensitive information about them. But requiring Lawyer A to get that consent and not requiring Lawyer M to get it seems strange and unfair. Both are potentially embarrassing Client X, but only one needs consent, first. If the issue is protecting the client from embarrassment, why stop at the lawyers? Let’s stop the revelation at its source and keep the court from publishing the opinion.
We’re already near the bottom of this slippery slope; we might as well get to the bottom of it.
Let’s not overlook how strongly this flies in the face of established practice.
Lawyers run a business. Like all businesses, they stand to grow with effective marketing. A key component of marketing is touting a track record of successes. Listing courtroom accomplishments and verdicts is as established as the phrase “if you or your loved one has been hurt…”
Clients, particularly successful ones, should not be surprised to learn that their lawyer is using their case to highlight the law firm’s competence. They may be surprised to hear that their attorney is spreading information that they consider to be awkward or private, but it is a public record now, after all. Yes, lawyers would do well to take measures to not tread on their former clients’ toes in order to write a blog post – that negative word-of-mouth advertising would undermine any SEO points scored by the article. But is that same client also justified in demanding that other firms remove website content that reveal continue to spread the same information?
In Light of This Absurdity, Here’s What We Tell Our Clients
When dealing with Opinion 480 issues, we tell our clients 2 things:
- Get informed consent, and
- Stick to the public record.
Get your client’s informed consent before blogging or writing about their case. Informed consent is the end run around the swamp that is Opinion 480.
Protip: Get it, upfront.
Winning a case and then asking a client if you can write about it is awkward. The client sees that you’re using the win to market yourself and your firm. It also asks for something that will lead to a definite and imminent result: Revealing Continuing to spread the information about the client that came out in the case.
By obtaining informed consent in, say, the engagement letter, you get permission to do something that is still a long ways off. The client isn’t thinking about it – they’re thinking about winning their case. Taking this route also gets it in writing.
Second, stick to the public record when writing the blog post or targeted page. There is hardly ever any good reason to do so. Actually revealing non-public and potentially confidential information can lead to a host of other problems.
We’re Also Going on the Offensive
Perhaps the only redeeming quality of ABA Formal Opinion 480 is that it is not binding. In light of that, we will be helping our clients by doing what we can to get actual guidance from state legal ethics departments, in jurisdictions that follow ABA Model Rule 1.6.
Hopefully, by seeking state guidance on hypotheticals that invoke Opinion 480’s absurdities, we can get ethical opinions that curtail or outright refuse to follow the ABA.
It shouldn’t be hard to come up with these hypos.