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We all know you can't reveal confidential client information, even long after your attorney-client relationship has ended. But confidential info isn't the only client secret you must maintain. Sharing even public, embarrassing client information can be an ethics violation, according to a recent formal ethics opinion issued by the California Bar.
So think twice before sharing that blog post about a former client's messy divorce, or bragging about how you got a client off easy; you might be violating your duty of confidentiality.
The Importance of Keeping Secrets
In the only formal ethics opinion released so far this year, the California Bar's Standing Committee on Professional Responsibility and Conduct addressed the duties a lawyer owes to current and former clients to "refrain from disclosing potentially embarrassing and detrimental information about the client, including publicly available information that the lawyer learned during the course of his representation."
The answer: keep a client's secrets secret, even if they don't qualify as confidential and even if they are publicly known. The Bar reasoned that attorneys' duty of confidentiality extended beyond information that would be privileged to encompass:
publicly available information that the lawyer obtained during the professional relationship which the client has requested to be kept secret or the disclosure of which is likely to be embarrassing or detrimental to the client.
The Bar noted that, unlike the ABA's Model Rules of Professional Conduct, California does not distinguish between "publicly available" information, which has to be sought out, and "generally known" information. That means that California lawyers could have to keep mum about embarrassing client info, even when that same information is being shared on the nightly news.
Information Obtained During the Professional Relationship
The ethics opinion gives three examples of an attorney sharing potentially embarrassing or damaging information regarding a client. In one case, the attorney learns of past claims against her client during representation, then shares a blog post detailing those claims. In another, the attorney brags to the press that she saved a client from a much worse outcome, after representation had ended. Finally, long after the client had left the attorney, he is arrested for a DUI. The lawyer comments on that arrest on her Facebook account.
The first two examples were both violations of the attorney's duty of confidentiality, according to the ethics opinion. The third was not. The reason? The first two involved information learned during the course of representation, bringing that information within the scope of the lawyer's confidentiality duty. The DUI arrest, however, involved info obtained only after the attorney-client relationship had ended, making it fair game for disclosure.