New ABA Formal Opinion on Blogging

The ABA Standing Committee on Ethics and Professional Responsibility has just issued a new formal opinion on Confidentiality Obligations for Lawyer Blogging and Other Public Commentary. The gist is that a law blogger cannot reveal information relating to a representation, including information contained in public records, unless an exception to the ordinary rule of confidentiality applies.

As a result of the new opinion, I have (perhaps temporarily) removed posts that refer to my own cases. Although I don’t often post about my own stuff, I’ve done so on a few occasions (never in a way that would disclose any client confidences or disadvantage a client, of course), and I want to figure out the implications of the new opinion before making any decisions. I have always thought that it is proper to discuss decisions, briefs, etc., in an academic way—never to the client’s detriment, of course, and never disclosing anything that is not contained in the decisions—but the new opinion suggests that is not correct, at least without the client’s informed consent. This issue is not just an issue for bloggers. It is an issue for lawyers who serve on CLE panels, lawyers who write articles for journals, and so forth. I wonder whether the ABA position is a bit extreme.

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