Login | September 18, 2024
ABA says do not use listservs for case advice
RICHARD WEINER
Technology for Lawyers
Published: August 16, 2024
Maybe some of you are on listservs that serve attorneys giving advice to one another.
For example, the Ohio Association for Justice has a set of discussion listservs set up by practice area “to help members connect with others in the same area of law.” And there are lots more of these online discussion groups.
A listserv, if you aren’t familiar with the term, is a discussion group that is based on email lists.
Of course there are several platforms that support online discussion groups beyond email groups and I imagine the rule should be interpreted to cover all of them.
ABA Formal Opinion 511, published on May 8, discusses the tricky proposition of asking other attorneys for advice on various discussion boards and listservs (and, I suppose, Facebook groups, etc.).
That opinion expands on ABA Model Rule of Professional Conduct 1.6(1), generally referred to as Rule 1.6, which restricts attorneys from revealing even publicly available and non-privileged information relating to a representation that poses a “reasonable likelihood” that a recipient of that information could “infer the identity of the lawyer’s client or the situation involved” unless the client has provided informed consent or the disclosure is impliedly authorized to carry out the representation.
These listservs are generally anonymized, so the problem that the new opinion tries to solve is a more granular situation with these discussions, namely, that in a back-and-forth discussion information may leak out that inadvertently identifies the case and/or the clients identification.
That is a no-no.
While not stating that these listservs and discussion boards should never be used, the opinion nevertheless states that, while attorneys can certainly seek advice from other attorneys with informed consent, “[p]articipation in most lawyer listserv discussion groups is significantly different” from that. Because the information and identity of the clients and participants is anonymized, lawyers “cannot be asked or expected” to keep the discussion confidential.
Therefore, the opinion states that lawyers are not “impliedly authorized to reveal… information relating to the representation of a client to a wider group of lawyers by posting an inquiry or comment on a listserv.”
There ya go.
Don’t ask for advice on a case you’re working on on a listserv.
Thanks for the analysis from Wilson Elser at the National Law Review, as well as Joseph Hollander & Craft.