Here is my recent Daily Record column. My past Daily Record articles can be accessed here.
****
Florida Bar on the Ethics of Sharing Case Hypotheticals in Lawyer Listservs
In the age of generative AI and rapid technological advancements, listservs can seem outdated and downright provincial. Even so, for many lawyers, even those who are tech-averse, this forum is a convenient and user-friendly way to connect with colleagues. Listservs provide a valuable sense of community, facilitating engagement with other practitioners on issues ranging from insights on local court rules and legal developments to obtaining referral recommendations and much more.
However, the simplicity and familiarity of listservs can mask the very real ethical issues encountered when using this technology to discuss sensitive client matters. One situation often discussed on listservs that can trigger ethical concerns is when discussing case hypotheticals with other participants. Doing so can sometimes reveal confidential information or enable members of your local legal community to surmise, by process of elimination, which client matter you’re inquiring about.
Most recently, the Florida Bar tackled this ethical dilemma in Proposed Advisory Opinion 25-1. The opinion was published on June 13th, and is open for comments until July 13th, 30 days after publication.
In the opinion, the Professional Ethics Committee acknowledged the very real value that listservs offer participating attorneys. However, the Committee also explained that lawyers seeking to obtain peer input regarding client matters must carefully navigate Florida ethics rules when doing so.
The Committee also discussed opinions from other jurisdictions where this issue has been considered, including American Bar Association Formal Opinion 511. In this opinion, the ABA Standing Committee on Ethics and Professional Responsibility concluded that there is an inherent risk, due to the nature of listservs, that a posting could be forwarded or otherwise shared with non-participants. Accordingly, in the absence of client consent, lawyers are ethically prohibited from posting anything to a listserv that could reasonably be linked to an identifiable client, whether the intent is to obtain assistance in a case or otherwise engage on the listserv.
Next, the Committee distinguished the ABA’s conclusion, explaining that Florida’s Rules Regulating the Florida Bar contain an exception not present in the ABA’s Model Rules. Namely Rule 4-1.6(c)(1), which provides that “[a] lawyer may reveal confidential information to the extent the lawyer reasonably believes it is necessary to … serve the client’s interest unless it is information the client specifically requires not to be disclosed[.]” However, the Committee cautioned that even when disclosure is allowed, it should be limited to “no more information than is required to meet the requirements or accomplish the purposes of this rule.”
The Committee’s application of that exception resulted in a departure from the ABA’s conclusion that client consent is required before attorneys can discuss client hypotheticals on listservs. Instead, the Committee determined that client consent is merely recommended where there is a reasonable possibility that the client could be identified from the hypothetical.
As long as the client has not directed otherwise, lawyers “can reveal client information only to the extent reasonably necessary to serve the client’s interests and only if the client has not directed otherwise.” Any uncertainty surrounding this issue “should be resolved in favor of nondisclosure.”
Jurisdiction notwithstanding, if you participate in a listserv, tread carefully when running case theories and factual hypotheticals past your colleagues. It’s one thing to bounce ideas off another lawyer in your law firm, and another to share that same information in a more public setting like a listserv. If I were you, I would err on the side of caution and obtain client consent or simply seek that type of input in a more private setting.
As I always say, better safe than sorry when your law license is on the line!
Nicole Black is a Rochester, New York attorney, author, journalist, and Principal Legal Insight Strategist at MyCase, CASEpeer, Docketwise, and LawPay, practice management and payment processing tools for lawyers (AffiniPay companies). She is the nationally-recognized author of “Cloud Computing for Lawyers” (2012) and co-authors “Social Media for Lawyers: The Next Frontier” (2010), both published by the American Bar Association. She also co-authors “Criminal Law in New York,” a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at niki.black@mycase.com.