Ethics Question of the Month July 2024

I Can’t Believe They Said That

Can lawyers disclose confidential client information when consulting with lawyers outside their law firm?

The Situation

A group of Texas lawyers created a social media site to provide an online forum for attorneys to exchange ideas and information. The site became popular and has a large number of active participants. The site is private and open only to Texas lawyers; judges and non-attorneys are not permitted access. Lawyers generally use it to seek help and advice on legal matters. Here are two recent postings:

Post 1: I’ve been approached about representing a couple who is thinking about selling their small, family-owned business. They think they may have potential liability from events a long time ago and are looking for an experienced transactional lawyer to advise them about disclosures they should make in connection with the sale. Does anyone have recommendations for a referral?”

Post 2: I work for a large Houston law firm. One of my colleagues represents a party in a divorce matter. The client’s drinking habits are an issue in the case. The lawyer knows the client was arrested for drunk driving, but all charges were dropped. Does the arrest need to be disclosed to opposing counsel?”

The Question

According to a 2018 Ethics Opinion, which of these postings violate the Texas Disciplinary Rules of Professional Conduct?

The Correct Answer is D Of 18 Responses, 38% are correct.

  1. A 0
  2. B 8
  3. C 3
  4. D 7
  5. E 0

The Explanation

The key issue here is the extent to which attorneys can discuss their cases with other attorneys outside their firm without violating their privilege and confidentiality obligations. Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct states:

(a) Confidential information includes both privileged information and unprivileged client information. Privileged information refers to the information of a client protected by the lawyer-client privilege of Rule 5.03 of the Texas Rules of Evidence or of Rule 5.03 of the Texas Rules of Criminal Evidence or by the principles of attorney-client privilege governed by Rule 5.01 of the Federal Rules of Evidence for United States Courts and Magistrates. Unprivileged client information means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.

(b) Except as permitted by paragraphs (c) and (d), or as required by paragraphs (e), and (f), a lawyer shall not knowingly:

(1) Reveal confidential information of a client or a former client to:

(i) a person that the client has instructed is not to receive the information; or

(ii) anyone else, other than the client, the clients representatives, or the members, associates, or employees of the lawyers law firm.

(2) Use confidential information of a client to the disadvantage of the client unless the client consents after consultations.

(3) 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.

(4) Use privileged information of a client for the advantage of the lawyer or of a third person, unless the client consents after consultation.

(c) A lawyer may reveal confidential information:

(1) When the lawyer has been expressly authorized to do so in order to carry out the representation.

(2) When the client consents after consultation.

(3) To the client, the client's representatives, or the members, associates, and employees of the lawyer's firm, except when otherwise instructed by the client.

(4) When the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rule of Professional Conduct, or other law.

(5) To the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer in a controversy between the lawyer and the client.

(6) To establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer or the lawyer's associates based upon conduct involving the client or the representation of the client.

(7) When the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act.

(8) To the extent revelation reasonably appears necessary to rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services had been used.

(9) To secure legal advice about the lawyer’s compliance with these Rules.

(10) When the lawyer has reason to believe it is necessary to do so in order to prevent the client from dying by suicide.

(d) A lawyer also may reveal unprivileged client information.

(1) When impliedly authorized to do so in order to carry out the representation. (2) When the lawyer has reason to believe it is necessary to do so in order to:

(i) carry out the representation effectively;

(ii) defend the lawyer or the lawyer's employees or associates against a claim of wrongful conduct;

(iii) respond to allegations in any proceeding concerning the lawyer's representation of the client; or

(iv) prove the services rendered to a client, or the reasonable value thereof, or both, in an action against another person or organization responsible for the payment of the fee for services rendered to the client.

(e) When a lawyer has confidential information clearly establishing that a client is likely to commit a criminal or fraudulent act that is likely to result in death or substantial bodily harm to a person, the lawyer shall reveal confidential information to the extent revelation reasonably appears necessary to prevent the client from committing the criminal or fraudulent act.

(f) A lawyer shall reveal confidential information when required to do so by Rule 3.03(a)(2), 3.03(b), or by Rule 4.01(b).

In Ethics Opinion 673 (2018), the Committee on Professional Ethics considered whether Rule 1.05 prohibits a lawyer from seeking advice from outside lawyers. The Opinion found that the Texas Disciplinary Rules of Professional Conduct “do not categorically prohibit informal lawyer-to-lawyer consultation for the benefit of a client, whether the consultation occurs in an online discussion group, an in-person meeting, or otherwise,” but in doing so attorneys must “honor their duty of confidentiality” to the client:

If possible, the inquiring lawyer should limit such consultation to general or abstract inquiries that do not disclose confidential information relating to the representation. If it is not reasonably possible to address the issues in question using a general or abstract inquiry, a lawyer may reveal a limited amount unprivileged client information in a lawyer-to-lawyer consultation, without the client’s express consent, when and to the extent that the inquiring lawyer reasonably believes that the revelation will benefit the inquiring lawyer’s client in the subject of the representation. The inquiring lawyer should do so using a hypothetical that does not identify the client. If under the circumstances a responding lawyer might match the hypothetical facts to a specific person or entity, or if it is reasonably foreseeable that the disclosure of the information will harm, prejudice or embarrass the client, the discussion of hypothetical facts without the client’s consent may violate the Texas Disciplinary Rules of Professional Conduct.

While the information in these posts is potentially prejudicial to the respective clients, neither of them contain the identity of the client nor any information that would point to the identity of the client. However, any additional public information that might serve to identify the client – press attention in a high-profile case, for example – would preclude the ability of the lawyer to utilize an online site to seek advice from other attorneys. Given the lack of identifying information in these posts, the best response is D.

Bluebook Citation

I Can’t Believe They Said That: Ethics Question of the Month - July 2024, Texas Center for Legal Ethics (2024), from https://legalethicstexas.com/ethics-question-of-the-month/ethics-question-of-the-month-july-2024/ (last visited Jul 18, 2024)