American Bar Association issues ethics guidance on lawyers' use of listservs for pending matters

The opinion emphasized the restrictions on client confidentiality

American Bar Association issues ethics guidance on lawyers' use of listservs for pending matters

The American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility has released Formal Opinion 511, providing crucial guidance on using listservs by lawyers, particularly concerning pending matters.

The opinion emphasized the restrictions imposed by Rule 1.6 on confidentiality as outlined in the ABA Model Rules of Professional Conduct. Formal Opinion 511 clarified that while listservs can be a valuable tool for lawyers to stay updated on legal developments and seek advice, posting questions or comments about client representation typically requires the client’s informed consent. The opinion warned against using listservs to seek advice on client matters if there is a reasonable likelihood that the information shared could lead to identifying the client or the specific situation involved.

“A lawyer may, however, participate in listserv discussions such as those related to legal news, recent decisions, or changes in the law, without a client’s informed consent if the lawyer’s contributions will not disclose, or be reasonably likely to lead to the disclosure of, information relating to a client representation,” the opinion states.

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The guidance draws on prior ABA formal opinions and recent bar opinions from Oregon and Maryland, highlighting the utility of listservs for lawyers to discuss legal principles and procedural strategies. However, the ABA underscored that the more unique the situation, the higher the risk of inadvertently disclosing client information protected by Rule 1.6.

The opinion also distinguished listserv discussions from private consultations with individual lawyers or select groups, indicating that the latter may pose less risk of confidentiality breaches. The ABA advised lawyers to exercise greater caution when discussing specific cases in public or semi-public forums like listservs.

The ABA’s Standing Committee periodically issues ethics opinions to assist lawyers, courts, and the public in interpreting and applying the ABA model ethics rules to specific aspects of legal practice, client-lawyer relationships, and judicial conduct.

ABA encourages lawyers and legal professionals to review Formal Opinion 511 and consider its implications for their practice, especially regarding maintaining client confidentiality while engaging in professional discourse on listservs.

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