The American Bar Association (ABA), notorious for being behind the times, made a proud public proclamation of moving into the 21st century earlier this month. Finally weighing in on what it called the “newest format” of legal commentary, the legal blog, the ABA told attorneys not to reveal confidential information when writing one. The warning is far from groundbreaking, but the breadth of the prohibition is like an awkward joke.
At Myers Freelance, we keep up with the recent developments in the world of online legal marketing and legal blogging, so we’ve read the Opinion. We’re going to call it what it is: An embarrassment to the legal field.
ABA Formal Opinion 480 and Model Rule 1.6(a)
The ABA’s Formal Opinion 480 was published on March 6, 2018, and marks a long-overdue foray into the world of legal blogging. On reading it, though, one is left with the impression that they should’ve just kept clear.
The onus of the Opinion is that:
Lawyers who blog or engage in other public commentary may not reveal information relating to a representation, including information contained in a public record, unless authorized by a provision of the Model Rules.
This is merely an application of Model Rule 1.6(a) to legal blogging, and the acknowledgement that this is the general rule, requiring any such disclosures to fall in one of the noted exceptions or be backed by client consent. The Opinion notes that 1.6(a) also applies to any “hypotheticals” that provide enough information that it becomes reasonably likely that a third party can determine a client’s situation or identity.
There’s nothing new here. Sure, it needed to be formally said, but that need has existed for more than a decade. Why the ABA is finally saying it is a mystery.
After providing this iota of value, though, Formal Opinion 480 takes a 40,000-foot nosedive into confusion by implicating the First Amendment and an ongoing state split on the disclosure of public information.
The State Split Over “Disclosing” Public Information
According to ABA Formal Opinion 480, “[t]he plain language of Model Rule 1.6 dictates that information relating to the representation, even information that is provided in a public judicial proceeding, remains protected by Model Rule 1.6(a).” Only a valid exception or the client’s informed consent can let an attorney “voluntarily disclose” the information in a legal blog.
That’s right: Even if the information is publicly available, attorneys can’t blog about it without their client’s consent.
The Opinion points to a handful of states that follow this rule, despite the First Amendment implications:
- West Virginia
However, not all states are in lockstep. There are also states that allow attorneys to talk about things that have already been released to the public:
Additionally, there is precedent to suggest that Nevada also falls on this side of the discussion, as well.
The ABA Falls Over Itself Trying to Resolve this State Split
Formal Opinion 480 seems like an attempt by the ABA to resolve this state split. If that’s the case, though, it’s as if the ABA brought a gun to the fight, for the specific purpose of shooting itself in the foot.
Opinion 480 pounds Model Rule 1.6(a) as the reason attorneys can’t blog about something, even if it is already a public record: Such a revelation would violate the duty of confidentiality.
But you can’t “reveal” public information. It’s already, by definition, revealed. This was the core argument of the cases that go against Opinion 480. By stepping into the fray and fighting for the pro-confidentiality side, the ABA uses the very language that hurts them, the most.
We’re honestly still a bit confused about what game the ABA is playing. As more details come to light, we’ll provide updates.