We all know that an attorney has a duty to protect confidential client information, but it’s easy to forget that duty when posting on social media or responding to online reviews related to a lawyer’s services. The proper analysis under the Texas Disciplinary Rules of Professional Conduct will involve Rule 1.05, which generally defines the scope and extent of a lawyer’s duty to protect confidential client information.
Rule 1.05(a) broadly defines “confidential information” to include information protected by the lawyer-client privilege, as well as “all information relating to a client or furnished by the client” that a lawyer acquires during the course of or by reason of the representation. Rule 1.05(b) prohibits a lawyer from revealing confidential information of a client or former client absent an applicable exception and also extends to the use of confidential information to the disadvantage of a client or former client.
For example, an attorney’s inclusion of information in a social media post that identifies a particular client, or which would allow a third party to do so, will generally be subject to the restrictions of Rule 1.05. These limitations will apply regardless of whether the communication is made in a public social media post or a social media post that is limited to friends and acquaintances of the lawyer.
The Professional Ethics Committee for the State Bar of Texas issued Ethics Opinion 662 (August 2016) related to an attorney’s duty of confidentiality in responding to a former client’s adverse comments on the internet and Ethics Opinion 648 (April 2015) related to an attorney’s communication of confidential information by email, which provide useful analysis related to an attorney’s duty of confidentiality as related to electronic communications. See www.legalethicstexas.com. As always, the proper analysis will depend on the specific facts involved.
If you are a Texas lawyer and have questions about your ethical obligations, you may contact the State Bar of Texas Ethics Helpline at (800) 532-3947 for guidance on how to access the relevant rules and information, including ethics opinions and caselaw, that may help you reach an informed decision. Please note that the service is not confidential and is not binding on any grievance committee panel.
Brad Johnson is an ethics attorney with the State Bar of Texas.