By Scott B. Garner
Suppose you are a client who hires a lawyer to defend you against allegations of sexual harassment in the workplace. It is unlikely you would take out an ad in the newspaper to advertise the allegations. Suppose further that your case goes to trial and you prevail on a statute of limitations defense. Again, it is unlikely you would take out an ad to let the world know about your victory – particularly since winning on a statute of limitations defense hardly constitutes vindication in the eyes of the public. But would you be okay with your lawyer advertising her victory on your behalf by including a description of the representation (with your name on it) on her firm’s website? For most people, the answer would be no.
Notwithstanding that common reaction, many lawyers include descriptions of past and even current representations in their online bios. Most representations may not be as sensitive as the hypothetical description above, but some are. And, even for those representations we may not believe to be sensitive, there may be reasons the client would prefer not to have his name listed as a representative client.
A lawyer’s duty of confidentiality may preclude her from listing certain representations on her online bio or otherwise advertising the representation absent client consent. This is true even if the facts and substance of the representation are in the public domain – for example, it was the subject of a recent public trial or even of a published appellate decision. But how can a representation be “confidential” or “secret” if there was a public trial or a published appellate decision, or maybe even an online story about the case? This concept is often perplexing to lawyers and non-lawyers alike.
A recent ethics opinion published by the Orange County Bar Association tackles this subject, explaining the limitations on lawyers in this context both under their duty of confidentiality and under California’s advertising rules. See OCBA Formal Opn. 2022-01, https://www.ocbar.org/Portals/0/pdf/OCBA202201.pdf. It explains the duty of confidentiality, and how, contrary to the attorney-client privilege, it may protect certain information that is not confidential or secret at all under a layperson’s understanding of those terms.
Under California law and ethics rules, information about even a former client is considered confidential if the client has requested the information remain secret or if disclosure of the information would be embarrassing or detrimental to the client. It is hard to argue that being accused of sexual harassment – even if you ultimately prevail at trial or otherwise – is not detrimental or embarrassing. Thus, the duty of confidentiality would preclude a lawyer from publicizing her victory in that case, absent client consent. The irony is that any other lawyer who did not represent that client is free to talk about the case, trial, or appellate decision; only the lawyer who represented that client cannot.
One relatively easy workaround for a lawyer who represents clients who might not want to be identified in this way is to list only generic client descriptions on a bio. For example, rather than identifying John Jones as the client, the lawyer can say something like, “Represented sales agent of an international company against claims of sexual harassment.” Unless the unnamed “sales agent” is easily identifiable by this posting – either by itself or in connection with other public information about the matter – the generic description should be permissible.
For many lawyers, they are fine not describing the work they did for a particular client, but just want to list their clients by name or logo to show the impressive scope of their client base. This is particularly true of lawyers who represent well-known public companies or celebrities. As a general matter, the identity of a client is not protected either by the attorney-client privilege or by a lawyer’s duty of confidentiality. That said, there may be circumstances where the very fact the client is represented by a lawyer may be considered confidential, likely because revealing the representation alone would be detrimental or embarrassing. An obvious example would be a criminal lawyer: most clients would prefer that the world not be told they had to hire criminal counsel. But the same might be true in less obvious situations. Suppose you, as a lawyer, hire a well-known legal malpractice defense firm. Would you want the world to know about that? Or suppose you hire a divorce lawyer, unbeknownst to your spouse? Having that divorce lawyer list you as a client might be, at the very least, somewhat awkward.
Even aside from the duty of confidentiality, California’s advertising rules may preclude certain entries on an online bio, including even the identity of a client, depending on the context. Comment  to Rule 7.2 notes that the rule “permits public dissemination of accurate information concerning a lawyer and the lawyer’s services, including, for example, . . . with their consent, names of clients regularly represented.” (emphasis added). Thus, if a lawyer wants to list “regularly represented clients” on her bio, she can avoid a potential violation of Rule 7.2 by first obtaining the clients’ consent. But is just listing the clients’ names or logos the same as saying you regularly represent them? Maybe or maybe not, depending on the context. But all lawyers who choose to list clients should be aware of Comment  to Rule 7.2 and determine whether, in light of the comment, they need to obtain client consent.
Finally, a word of caution. What would be detrimental or embarrassing to one client may not be detrimental or embarrassing to another client or to you. So unless the type of representation is not a close call (i.e., it could not reasonably be considered detrimental or embarrassing), don’t risk it. Seek the client’s consent before trading on their name or the facts of their representation. It is not only the safe ethical course, but some would argue it is just the right thing to do.
Scott B. Garner is a partner at Umberg/Zipser LLP in Irvine, California, practicing complex business litigation, with a particular emphasis on lawyer liability defense and ethics counseling. Mr. Garner is a member of the CLA Ethics Committee, the co-chair of the Orange County Bar Association Professionalism and Ethics Committee, and a former Chair of the State Bar of California’s Committee on Professional Responsibility and Conduct. He also is a former President of the Orange County Bar Association. The views expressed herein are his own.