The Need for Caution in Tapping Listserv Resources
Busy lawyers focused on any area of practice may feel the pull to take research shortcuts by tapping into a collective brain trust via posts on a listserv of experienced practitioners. Listserv groups are a valuable tool to learn of developments in the law and find direction on specific legal issues. Using a listserv to email colleagues for advice, pointers and authorities is still a valid and viable means of soliciting helpful tips and more. However, an opinion recently issued by the American Bar Association (ABA) underscores the risks of listserv participation and highlights the need for caution in fashioning content before pressing send on an email directed to a listserv group.
In May, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 511. The ABA ethics opinions are not technically binding on New Jersey practitioners, and New Jersey has gone its own way historically, sometimes deviating from the ABA’s Model Rules to fashion New Jersey specific standards. However, the ABA is regarded as the thoughtful arbiter of legal standards especially with respect to professional responsibilities. At a minimum, the opinions are persuasive and recognized as the product of extensive intensive analysis by serious commentators on the legal profession.
The ABA opined that seeking advice on an email discussion group would be unethical “if there is a reasonable likelihood that the lawyer’s questions or comments will disclose information relating to the representation that would allow a reader then or later to infer the identity of the lawyer’s client or the situation involved.” It found no fault, however, with listserv “discussions of 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….”
Opinion 511 raises red flags about emailed questions about real clients to a listserv. The central concern about utilizing listservs is that by seeking feedback, pertinent case law, strategy pointers and more, the poster may disclose information that should be kept confidential. Obviously, no privileged communications – verbatim or in summary – should appear in a listserv post to a group whose individual members are not all known to the posting lawyer. In addition, the breadth of confidentiality under the Rules of Professional Conduct is extensive. As set forth in RPC 1.6, it far exceeds the scope of the evidentiary attorney-client privilege that essentially cloaks communications between the lawyer and client with confidentiality. The ethical responsibility contained in RPC 1.6 goes much farther by defining as confidential any information – regardless of its source or format – pertaining to the representation. Only information whose disclosure the client approves after consultation, necessary disclosures to carry out the representation and generally known information are permitted under RPC 1.6. Absent consent or a necessity to disclose to carry out the representation, or the nature of the information is generally known, any information related to the representation stays confidential. The ABA warns that there is no implied consent to disclosure of information in order to get collegial assistance online through a listserv; it urges lawyers to obtain explicit consent from clients to utilize the listserv as a research resource. Even posting a set of facts or issues as a hypothetical can run afoul of the poster’s confidentiality obligations.
Any email posted to a listserv that could reasonably lead to identification of the client is impermissible. Likewise, any post that describes a situation in a manner making it identifiable is off -limits, and the same prohibition applies in broad brush stroke to including anything related to the representation.
These limitations do not totally eviscerate the listserv as a tool, if the poster uses caution to disguise the matter sufficiently. Before making use of a valuable source of lawyer-to-lawyer guidance, pause and consider whether the facts, circumstances or legal issue involved are distinct enough to reveal or reasonably lead to identifi cation of a real-life situation. The alternative may be to selectively target colleagues known to the lawyer seeking advice – the ABA opinion rests in part on a notion that the recipients of the email who are part of the listserv community may include persons whom the poster does not know. By choosing to send an inquiry to a subset of the listserv comprised of specific lawyers, the emailing attorney sidesteps that concern.
The listserv community is a wonderful means of connection, community and cooperation among lawyers. ABA 511 is not a sufficient basis to abandon its use. By exercising caution in disclosing the underlying facts, circumstances or legal issues involved, lawyers can continue to communicate with colleagues, and both share and receive meaningful input. Being mindful that identifying information cannot be revealed, lessens the risk that posters and responding lawyers alike transgress the confidentiality mandates established by RPC 1.6 and interpreted broadly by the ABA in its Opinion 511.
