Blogging About Blogging: ABA Provides Guidance on Ethics of Public Commentary

By Ben Dell’Orto, Spring 2018 IAC Student Intern

Maybe lawyers should leave the blogging to law students.

The American Bar Association released Formal Opinion 480, which discusses lawyers’ ethical obligations when posting on blogs and other internet forums. Lawyers frequently use blogs, podcasts and online videos to educate the public about legal issues.

The opinion first discusses lawyers’ duty of confidentiality to their clients. Lawyers must keep information related to their representation confidential unless their clients give informed consent, and this extends to lawyers’ internet activities. Though the exact details vary by jurisdiction, many states place the obligation of confidentiality on lawyers before representation even begins. Confidentiality “principally, if not singularly . . . encourages a client to communicate fully and frankly with his or her lawyer.”

What lawyers may forget, however, is that a lawyer must not communicate publicly available information such as a court order—or even generally-known information—if it relates to the representation. A lawyer does not avoid this obligation where he or she changes a client’s name or reframes the story as a hypothetical if there is a “reasonable likelihood” that a third party could figure out the client’s identity. This is the reason the clinic avoids telling real life stories on our blog; we are obligated to keep our clients’ information safeguarded, just like any other law firm.

While the First Amendment applies to lawyers as much as anyone else, the opinion notes that it is “not without bounds.” Because lawyers are subject to the ethical obligations described above, the First Amendment is not available as a justification for sharing information without informed consent from the client.

The opinion also addresses the ethics of trial publicity and how they relate to social media. A lawyer cannot attempt to influence jurors or judges through political commentary, and doing so has led to disbarment in at least one case.

The key to avoiding an ethical issue when blogging is to keep clients out of the commentary and avoid telling stories too similar to real events—especially when the case is still before the court.