Loose Lips Sink Ships—Even On Professional Listservs

June 2023

By Merri A. Baldwin, Rogers Joseph O’Donnell P.C.

Many legal organizations provide listserv discussion groups for their members to exchange information, raise questions about current events or developments in the law, or seek input about matters member lawyers are handling.  Such organizations may have express eligibility requirements for lawyers to participate on the listserv, usually limiting participation to lawyers who practice in a particular area and (usually) who represent clients on a particular side of that practice area.  The reason for such rules is clear:  members want to be able to freely share information and ideas, without being concerned that the other side may obtain access.  Additional formal or informal rules may require that members not disclose the content of listserv discussions to people outside the listserv, or other similar limitations.

The ABA in May 2024 issued an ethics opinion, Formal Opinion 511, that addresses lawyer participation in professional listserv discussion groups and provides ethical guidance that may chill the willingness of some lawyers to post inquiries related to client matters.  The focus is on the duty of confidentiality set forth in Model Rule 1.6, which limits a lawyer’s ability to publicly disclose confidential client information (defined as “information related to the representation”) without the client’s consent.  The opinion considers whether, in order to further a client’s interests, a lawyer is “impliedly authorized” to reveal client information by posting an inquiry or comment on a listserv.  The answer, not surprisingly, is no.

“Typical listserv discussion groups include participants whose identity and interests are unknown to lawyers posting to them and who therefore cannot be asked or expected to keep information relating to the representation in confidence.”  (Opin. 511, p. 4)  The opinion also notes that a listserv post could possibly be viewed by opposing counsel, or disclosed to someone who could use that information against the client.

This risk, of course, is not just theoretical.  A few years ago, defendants in a case pending in the Northern District of California sought discovery of discussions on a consumer attorney listserv that concerned a particular case.  While the magistrate judge in that case denied the request, the fact that defendants even knew about the discussion created a sense of unease among lawyers who, prior to that point, had felt that they could participate more freely in what they viewed as a discussion among colleagues with shared interests, and who arguably, at times, disclosed confidential client information through their posts.  That situation emphasized the need for care in disclosing confidential client information in listserv discussions, and especially information that revealed a lawyer’s strategy or work product.

ABA Opinion 511 goes further.  The opinion states:  “[w]ithout informed consent, a lawyer participating in listserv groups should not disclose any information that may be reasonably connected to an identifiable client,” even where an inquiry is anonymized to remove any indications of the client identity.  (Opin. 511, p. 4-5)  The risk that a client identity may be ascertained from a lawyer’s listserv posting increases “the more unusual the situation” or “when lawyers represent only one client (as in the case of in-house counsel or government lawyers),” or “if a matter is receiving media coverage . . .” (Id.)  

Perhaps the most far-reaching (and controversial) guidance in the opinion is the limitation the opinion writers state applies where the members of a listserv are so well known to each other that even the most generic question could lead to discovery of a client’s identity.  “[W]here the listserv participants are familiar with each other’s practice because they practice in a limited geographic area or a specialized practice setting, posting a hypothetical based on information relating to the representation of the client will be more likely to lead to disclosure of the client’s identity to some other participant on the listserv.”  (Opin. 511, p. 6)  In such cases, the opinion suggests that lawyers should obtain informed client consent before posting.  The determination of whether a client’s identity may be revealed by a listserv post, of course, is a difficult one, and lawyers may differ in their assessment of this risk.  The opinion urges a very expansive interpretation:  “Even a general question about the law, such as a request for cases on a specific topic, may in some circumstances permit other users to identify the client or the situation involved.”  (Opin. 511, p. 6)

ABA ethics opinions are not binding in California, but they do provide guidance in situations where California’s rules are similar and where there is no contradictory California authority.  Since California’s duty of confidentiality is even more stringent than that set forth in ABA Model Rule 1.6 (see Bus. & Prof. Code section 6068(e)), California lawyers should consider exercising at least the level of care suggested by Opinion 511 when posting inquiries on professional listservs that could, by the content, timing or circumstances of the post, reveal the client’s identity.  Or they should consider getting the client’s informed consent before posting.

Merri Baldwin is a shareholder at Rogers Joseph O’Donnell in San Francisco.  She is a member of the California Lawyers Association Ethics Committee, and a former Chair of the State Bar’s Committee on Professional Responsibility and Conduct. The views expressed in this article are her own.