A recent proposed California ethics opinion discusses a number of scenarios in which client confidentiality may be involved. Of course, matters subject to attorney-client privilege cannot not be revealed, but unprivileged information obtained in the course of representing clients is also confidential. In one of the opinion’s scenarios, a lawyer relays to friends a link to another person’s blog entry about a current client that relates to the representation. Even though the information is public, the lawyer may not relay it to others, according to the opinion. In another scenario, representation has ended, and the lawyer makes a public comment, based on publicly available information online, supporting charges against the client. This, too, is considered a violation of the rules by the opinion.
Would this be the result under the Texas Disciplinary Code of Professional Conduct? A similar result is quite likely under the Texas rules. Under Texas Rule 1.05(a), both privileged and unprivileged information gained as a result of representation is confidential, and cannot be revealed or used to the disadvantage of the client without consent, with limited exceptions. After representation has concluded, Rule 1.05(b)(3) applies. A lawyer may not:
Use confidential information of a former client to the disadvantage of the former client after the representation is concluded unless the former client consents after consultation or the confidential information has become generally known.
The question is, assuming lack of client consent to using or revealing information, whether the information online has become “generally known.” The California opinion notes prior opinions finding that despite a conviction being public record, it may still be a client “secret” subject to the confidentiality rule. In one recent case, however, a Virginia court held that noting that a lawyer blogging about a favorable result for a client in a criminal matter, which was of public record, is speech subject to First Amendment protection.
It is probably best for Texas lawyers to keep quiet about client activities, whether related to representation or not, both during and after representation. The California opinion does note that a lawyer may comment on a matter, such as an unrelated criminal charge wholly unrelated to the client matter, that arises after representation. Still, doing so may not sit well with a former client. More importantly, the discipline of declining to comment about the subject of the representation after representation might be lost in expressing any off the cuff opinions about the client.