Oregon State Bar Bulletin OCTOBER 2012
Lawyers Helping Lawyers:
By Helen Hierschbiel
Learning for lawyers does not end at graduation from law school or even at the successful completion of the bar exam. Perhaps this is the reason the legal profession is called the “practice” of law. Lawyers keep “practicing” law until they get it right. Continuing education for lawyers takes the form of not just lectures and seminars, but more often, both formal and informal discussions with colleagues. No matter what area of practice, lawyers look to other lawyers for guidance in understanding not only substantive and procedural laws, but also strategy, practical realities and the sometimes elusive professional norms they are expected to follow in order to develop and maintain a good reputation with fellow lawyers, the courts and clients.
These days, more and more lawyers are looking online for assistance from their peers. List serves and blogs have become common mediums for lawyers to share their wisdom and seek out answers to lingering questions. The Oregon State Bar maintains list serves for all sections that request one. Several sections have lists with over 1000 subscribers. The largest and most active section list serves have an average of 11 posts per day. 1 According to the 2012 ABA Legal Technology Survey Report, 22 percent of lawyers polled said their firm has a blog and nine percent said they maintain their own professional legal-topic blog.
Particularly for lawyers in solo or small firm practices, these virtual communities provide not only invaluable opportunities for learning, but also a sense of camaraderie and support. 2 Perhaps it is this sense of community, along with the speed and ease of email communication, transmitted from the quiet isolation of the office, which makes lawyers, often with the best of intentions, forget their duty to maintain the confidences of their clients when they are posting on list serves or blogs.
What Can Go Wrong?
The classic horror story of a lawyer getting into trouble for online postings is that of Kristine Ann Peshek, the former Illinois assistant public defender whose law license was suspended for 60 days because of her blog postings that exposed client confidences. The disciplinary complaint cited several objectionable entries, including the following:
#127409 (the client’s identification number) This stupid kid is taking the rap for his drug-dealing dirtbag of an older brother because “he’s no snitch.” I managed to talk the prosecutor into treatment and deferred prosecution, since we both know the older brother from prior dealings involving drugs and guns. My client is in college. Just goes to show you that higher education does not imply that you have any sense. 3
Of course, Peshek’s case involved careless storytelling, not unassuming requests for assistance. So far, no Oregon lawyer has been disciplined for disclosing confidential information when requesting help from other lawyers. 4 But that is not because all Oregon lawyers are particularly cautious when posting to blogs and list serves. On the contrary, despite several articles and ethics opinions on the topic, lawyers often post the details of their client’s case in frightening detail to OSB section list serves with hundreds of members, many of whom are judges or regularly represent opposing parties. While lawyers often refer to their scenarios as “hypotheticals” and may not give the full name of their client, the details they provide may make for easy identification of the client and fodder for the adverse party’s case. Consider the following (truly) hypothetical post on a section list serve:
Client (I’ll call him Bailey) works for government entity in a small town. Bailey is disabled (or so he says) and has a medical marijuana card. Employer does not know about Bailey’s disability or that he uses marijuana, sometimes before work because it eases his back pain. He does truck deliveries and sometimes the lifting is difficult because of his back. HR recently issued him a warning because he is not meeting his delivery deadlines. He also recently received a ticket for running a stop sign. He wants to know what to do, and doesn’t have much money so was referred to me through the modest means program. I am new to this area of law. Help!
What is wrong with this post? It contains a lot of detail, but lawyers know that getting good advice means making full disclosure of the facts of the case. And, it’s a hypothetical, so client’s identity is protected, right? Wrong. Disclosure of any “information relating to the representation of a client” is prohibited by the rules of professional conduct. See RPC 1.6(a). There are exceptions, of course, but none exist for postings to a list serve or blog in search of assistance. In OSB Formal Ethics Op No 2011-184, the OSB Legal Ethics Committee cautions that framing a question as a hypothetical could still result in a violation of RPC 1.6 if the facts given are so detailed and unique that the client’s identity could be determined.
RPC 1.6(a) does allow disclosure where “impliedly authorized to carry out the representation.” ABA Formal Ethics Op 98-411, Ethical Issues in Lawyer-to-Lawyer Consultation, interprets this provision “to allow disclosures of client information to lawyers outside the firm when the consulting lawyer reasonably believes the disclosure will further the representation by obtaining the consulted lawyer’s experience and expertise for the benefit of the consulting lawyer’s client.” While this provision might allow limited disclosure of client information to another lawyer with whom one wants to consult, it does not allow broad disclosure of confidential information to hundreds of other lawyers on a list serve or blog. Moreover, even if this provision provides a shield against disciplinary action, it does not avoid waiver of attorney-client privilege. Whether disclosure of information in reliance on this provision would act as a waiver of attorney-client privilege is a matter of substantive evidentiary principles that should be carefully considered prior to disclosure. See ORS 40.225.
What about disclosure of the client’s ticket or criminal history? Is that allowed because it’s part of the public record? No. A common misconception about the prohibition against disclosure of “information relating to the representation” is that if the information is part of the public record, disclosure is fair game. Review of the definition of information relating to the representation of a client, however, shows the danger in making this assumption. RPC 1.0(f) defines protected information to include “both information protected by the attorney-client privilege under applicable law, and other information gained in a current or former professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.” In other words, it’s not just privileged information that is protected, but any other information that the client has asked be kept secret or that could be detrimental or embarrassing to the client if disclosed. A client’s criminal history could be embarrassing to the client if disclosed.
One exception to the duty of confidentiality lies in RPC 1.6(b)(3), which provides that a “lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary … to secure legal advice about the lawyer’s compliance with these Rules.” Lawyers commonly expect to be able to rely on this exception when seeking ethics guidance from the bar, pursuant to RPC 8.6. Comment 9 to ABA Model Rule 1.6, however, cautions that this provision is intended to cover situations in which lawyers are securing confidential legal advice about the lawyer’s professional responsibilities. Lawyers should be aware that the Oregon State Bar is subject to the Public Records Law, ORS 192.410 to 192.505. The ethics guidance that lawyers seek from the Oregon State Bar pursuant to RPC 8.6 is not confidential. Thus, to the extent that records are submitted in support of or generated in response to a request, those records must be redisclosed upon request. If lawyers want confidential ethics advice, they should seek it from private counsel.
The Right Way to Ask
So if the hypothetical post is inappropriate, how could it be changed to comply with lawyers’ professional responsibilities? Consider the following possibility:
Client is disabled with medical marijuana card. Employer doesn’t know about either disability or marijuana use. Client was recently subject to discipline and is worried about losing job. Suggestions for how client might proceed?
Or, one could ask for general case citations or resources to address the issue, as in:
I would appreciate any case citations, statutes or other resources (if any) that discuss medical marijuana use as a reasonable accommodation. Are there other types of accommodations for an employee with a serious back condition whose job involves regular lifting?
Or, when lawyers need more specific assistance, they might consider asking for a consultation with a lawyer who is more experienced in the area of law needed. In that context, a confidentiality agreement can ensure the protection of information relating the representation of the client. See OSB Formal Op No 2011-184.
In all cases, before posting a request for assistance on a list serve or information about a case on a blog, lawyers should ask themselves, would I disclose the information to my opposing counsel? Or would I want my email or blog to be Exhibit A in my client’s litigation? And for those wise, experienced lawyers who lurk in the shadows of the list serves and cringe when they see a new or inexperienced lawyer disclosing the intimate details of their client’s case, consider picking up the phone and offering some friendly mentoring advice.
1. The Estate Planning/Administration Section has 1,200 list members with an average of 12 posts per day. Real Estate and Land Use Section: 1,150 members, an average of 8 posts per day. Family Law Section: 1,000 list members, an average of 13 posts per day. Elder Law Section: 550 list members, an average of 9 posts per day. Solo and Small Firm Practitioners Section: 600 members, an average of 11 posts per day.
2. See Levin, “Lawyers in Cyberspace: The Impact of Legal Listservs on the Professional Development and Ethical Decisionmaking of Lawyers,” Arizona State Law Journal, 37 Ariz.St.L.J. 589 (2005).
3. A copy of the complaint can be found at https://www.iardc.org/09CH0089CM.html. The decision is located at https://www.iardc.org/rd_database/disc_decisions_detail_print.asp?Group=9567.
4. One Oregon lawyer was disciplined, however, for posting a list serve message that disclosed a former client’s confidential personal and medical information and otherwise portrayed the former client in an unflattering light after the client had terminated the representation. In re Qullinan, 20 DB Rptr 288 (2006).
ABOUT THE AUTHOR
Helen Hierschbiel is general counsel for the Oregon State Bar. She can be reached at (503) 620-0222, or toll-free in Oregon at (800) 452-8260, ext. 361, or by email at firstname.lastname@example.org.
© 2012 Helen Hierschbiel