ABA Issues Formal Ethics Opinion 511 on Confidentiality Obligations of Lawyers Posting to Listservs
May 8, 2024
By: John M. Tanner and Cecil E. Morris, Jr.
Last week, the ABA issued Formal Ethics Opinion 511 on Confidentiality Obligations of Lawyers Posting to Listservs. ABA Formal Opinions are not binding, but are considered authoritative. Opinion 511 is available here.
Essentially, ABA 511 says that Rule 1.6 prohibits a lawyer from posting questions or comments relating to a representation to a listserv, even in hypothetical or abstract form, if there is a reasonable likelihood that the post will disclose the identify of, or information relating to, the client (absent informed consent of the client).
This poses a special challenge for in-house lawyers, as they typically only have one client. As such, the listserv participants might be able to infer who the client in the “hypothetical” is rather easily. Thus in-house counsel must be especially cautious in using listservs as a source for legal help.
An in-house 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.