Page 6 - September October 23 Report

Comment 4 to this Rule further provides that this provision applies to “disclosures that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person.”8 While lawyers may use a hypothetical to discuss issues, they must ensure that “there is no reasonable likelihood the listener will be able to ascertain the identity of the client or the situation involved.”9
Unless the Rules directly authorize disclosure, the ABA has advised that “[l] awyers who blog or engage in other public commentary may not reveal informa- tion relating to a representation that is protected by Rule 1.6(a), including infor- mation contained in a public record, unless disclosure is authorized under the Model Rules.”10 In other words, informa- tion contained in court proceedings, while public, are not exempt from the lawyers’ duty of confidentiality.11
So, while attorneys may believe they are only speaking hypothetically when posting about their cases, this does not render them immune from ethical sanc- tions. Consider, for example, the case of Bar Counsel v. Frank Arthur Smith III, in which the Massachusetts Board of Bar Overseers publicly reprimanded an attorney for social media posts that violated Massachusetts Professional Rule 1.6.12 Smith represented a client in a peti- tion seeking guardianship of her minor grandson. After attending a hearing in juvenile court on the matter, Smith posted comments on Facebook about the hearing, in which he named the county, the court, and described his client as a “grandmother who was seeking guard- ianship of her six-year-old grandson.” He further relayed that the DFC opposed this guardianship and stated the date of the next hearing. The post precipitated ques- tions in the comments, which prompted Smith to respond with additional infor- mation, including the fact that the minor was in his fourth foster placement since he was removed from his grandmother’s residence.
The client’s daughter recognized these posts as pertaining to her family situation and had a conversation with her mother (Smith’s client) about the posts. After a dispute developed between Smith and the client, the client filed a bar complaint. The
Massachusetts Board of Bar Overseers determined that these posts could likely be embarrassing or detrimental to the client, and therefore violated Rule 1.6. The Board rejected Smith’s argument that the posts did not reveal sufficient information to breach confidentiality:
Even if there were no evidence that a third party actually recog- nized the client in the post, we would still conclude that the respondent had violated Rule 1.6(a). There is no requirement that a third party actually connect the dots. If it would be reasonably likely that a third party could do so, the disclosure runs afoul of the rule. In addition to her daughter knowing about the case, Doe could have mentioned to a friend that the respondent was representing her in a case (perhaps in connection with making a referral). If the friend looked up the respondent on Face-
book, the friend would learn about the “grandmother” and her litiga- tion with DCF. There are numerous other reasonable scenarios.13
As this case clearly demonstrates, attorneys who engage in social posting about their own cases must be wary of the ethical lines imposed by the Profes- sional Rules. Further, rather than play too close to that ethical line — as it moves and changes with the advancement of technology — attorneys should endeavor to abide by the aspirational goals of the profession. As recognized in the Preamble to the Ohio Professional Rules:
Lawyers play a vital role in the preservation of society. A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs. A lawyer should use the law’s procedures only for
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THE REPORT | September/October 2023 | CincyBar.org