So, you want to brag about your latest courtroom victory or closed deal on social media.
Congrats on your win! But be mindful: unless you have informed consent from your client, any social media bragging could reveal confidential client information and result in a violation of the Rules of Professional Conduct. (Yes, even if you share information or facts in the public record such as a trial verdict.)
Maintaining Client Confidences
The New York Rules of Professional Conduct 1.6 defines confidential information as “information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential.”[i] (The ethical obligations concerning client confidentiality and confidential information are distinct from the rules of the evidentiary attorney-client privilege. The intersection of attorney-client privilege and social media is not addressed in this article.)[ii]
Maintaining client confidences and confidential information applies to any and all attorney social media activity. While each situation is fact-specific, attorneys should keep a few things in mind when deciding whether and what to post on social media (and beyond).
New York Rules of Professional Conduct
The rules protecting client confidential information are outlined in the New York Rules of Professional Conduct (effective April 1, 2009, and amended through June 24, 2020). According to Rule 1.6(a), a lawyer shall not knowingly reveal confidential information or use such information to the disadvantage of the client or for the advantage of the lawyer or a third person.
Rule 1.6 confirms that confidential information (as defined above) does not include a lawyer’s legal knowledge and/or research. Confidential information does not include information that is generally known in the local community or in the trade, field, or profession to which the information relates. However, as noted in the commentary to Rule 1.6, the fact that information may be part of a publicly available file or a result is in the “public domain” does not make the information “generally known.”
Under Rule 1.6(a), client confidentiality must be maintained unless:
- The client gives informed consent
- The disclosure is impliedly authorized to advance the best interests of the client
So if you close a deal for a high-profile client and that client gives you permission to post about it, then you can go ahead with your brag post.
However, if an attorney does not receive informed consent from their client, Rule 1.6(a) cannot be skirted by using an anonymous post that’s anything but anonymous. For example, a Twitter rant talking about client xx, her new SNL boyfriend, and her divorce from a famous rapper who sent her threats online would raise some eyebrows. That’s because while the client technically remains anonymous, there are glaring identifiable descriptors of the client. Anonymous posts must truly be anonymous. Your legal blog can’t say your client is Jim Jardashian under the guise of anonymity. A lawyer’s ethical obligations do not just disappear because an interaction occurs online.
These principles apply to all social media activity including posting on platforms such as Instagram, LinkedIn, Facebook, Twitter, Snapchat, and TikTok. But the required analysis is not limited to posting on social media; the same analysis also applies when lawyers respond to online reviews or reply to online comments, or when posting blogs or on websites. Client confidences must be maintained throughout all these different interactions, and lawyers should understand how the platforms they are using work before using them and consider if any of their online activity places client information and confidences at risk.[iii]
Sometimes, a lawyer might need to reveal or use confidential information. Such disclosure is allowed only in circumstances that a lawyer believes necessary under Rule 1.6(b), which says confidential information can be revealed:
- To prevent reasonably certain death or substantial bodily harm
- To prevent the client from committing a crime
- To withdraw a written or oral opinion or representation previously given by the lawyer and reasonably believed by the lawyer still to be relied upon by a third person, where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud
- To secure legal advice about compliance with these Rules or other law by the lawyer, another lawyer associated with the lawyer’s firm or the law firm
- To defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct or to establish or collect a fee
- When permitted or required under these Rules or to comply with other law or court order
But while Rule 1.6(b) sets out certain situations in which a lawyer can disclose confidential information, attorneys must consider that Rule 1.6(c) requires the lawyer to make reasonable efforts to prevent the inadvertent or unauthorized disclosure or use of, or unauthorized access to, information protected by Rules 1.6, 1.9(c), or 1.18(b). (Rule 1.6 refers to confidentiality of information as referenced above in parts a, b, and c. Rule 1.9(c) refers to confidentiality rules and protections for former clients, and Rule 1.18(b) refers to confidentiality rules and protection for prospective clients.) Given the public nature of online communications, social media and other postings are almost certainly not the appropriate forum for disclosures that might otherwise be permissible.
Essentially, lawyers have the ethical responsibility to former, current, and prospective clients to keep information learned during or relating to the representation of a client confidential. Unless your client has given you permission to disclose the information you’re posting, or disclosure is otherwise authorized under Rule 1.6(b), you’re bound by the ethical rules of client confidentiality. Each scenario is fact-specific, so here’s your friendly reminder to be careful with what you post on social media. And congrats on landing Jim Jardashian as a client!
[i] NYRPC §1200 (Rule of Professional Conduct 1.6)
[ii] N.Y.C.P.L.R. §4503
[iii] NYSBA, of the Social Media Ethics Guidelines, June 20, 2019, at No. 5.E