MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2015-03
The Use of Listservs and the Rule on Confidentiality and the Duty to Report Misconduct of Others
Introduction
The Internet and new communication technologies present great opportunities for the legal profession, but their use also implicates adherence to the Maryland Lawyers’ Rules of Professional Conduct (MLRPC). Recently, we have received a request to clarify the application of MLRPC to peer-to-peer listservs. We believe that the need for guidance in this area represents a worthwhile opportunity to address the possible ethical issues presented by the use of listservs by new and experienced legal professionals, alike. Accordingly we issue this advisory opinion.
In this opinion, we will only address the implications of certain Rules, namely MLRPC 1.6 (Confidentiality of Information) and MLRPC 8.3 (Reporting Professional Misconduct) which may arise during the use of peer-to-peer listservs. This opinion is not intended to be exhaustive, as varied factual circumstances may implicate additional rules.
Definitions
Listserv – LISTSERV is a trademarked “software for managing e-mail transmissions to and from a list of subscribers.”1 Similar to other brand names that have been “genericized” (think Xerox or Kleenex), the word “listserv” is no longer used to indicate the specific software used, but is rather a generic term for a process of sending one email simultaneously to a pre-determined group of recipients.
Peer-to-peer – As used in this opinion, peer-to-peer shall mean communications made between attorneys only, and that such communications are not accessible to clients, prospective clients, or other members of the public.
Scenario
Lawyer A is a new practitioner and is a member of a peer-to-peer listserv which, among other functions, provides members with the opportunity to exchange ideas and respond to questions about problems and issues that arise in their practices. Lawyer A is facing an unusual situation in a case he is handling and wishes to receive advice on how to proceed from knowledgeable colleagues who participate on the listserv.
Questions Presented
- May Lawyer A post a question to the peer-to-peer listserv?
- In light of MLRPC 1.6, may the lawyer reveal the details of the unusual situation in the case he is handling when posting on the listserv?
- Do other members of the listserv have an obligation under MLRPC 8.3 if, after reading Lawyer A’s post, they believe that the lawyer has violated MLRPC 1.6?
Opinion
It is not uncommon for a lawyer working on a client matter to seek the guidance of knowledgeable colleagues. Except when a client has requested certain information be confined to specific partners, a lawyer may seek the guidance of other lawyers at the firm where he or she works without violating the rules of confidentiality.2
The committee recognizes that peer to-peer listservs represent a powerful tool for lawyers. They provide the opportunity for a lawyer to test his or her understanding of legal principles and to clarify the best way to proceed in unique situations. This tool is extremely efficient, as a lawyer is able to simultaneously reach out to a large number of peers without leaving his or her office. It is of particular benefit to solo practitioners, who may not have the same level of access to colleagues, as would a lawyer working in a firm. Communication via a peer-to-peer listserv to educate oneself can even help a lawyer to comply with MRPC 1.1 (Competence).
However, where the attorney relies on a professional listserv, he or she must comply with the rules involving confidential disclosures and other duties required by MLRPC. Rule 1.6 prohibits the disclosure of information relating to the representation of the client without the client’s informed consent or as covered in one of the specific exceptions to the rule.
MLRPC 1.6
When seeking advice using a peer-to-peer listserv, the consulting lawyer must comply with MLRPC 1.6 (Confidentiality of Information). Rule 1.6(a) states as follows: “A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).”
An abstract question that does not reveal identifying information (such as client name, or date of the upcoming hearing) may be permissible. However, sometimes even abstract or hypothetical questions can be problematic. Comment [4] to Rule 1.6 states as follows: “Paragraph (a) prohibits a lawyer from revealing information relating to the representation of a client. This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. A lawyer’s use of a hypothetical question to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client of the situation involved.” We agree with the Oregon Bar Association that “[w]here the facts are so unique or where other circumstances might reveal the identity of the consulting lawyer’s client even without the client being named, the lawyer must first obtain the client’s informed consent for the disclosure.” OR Eth. Op. 2011-184 (Or. St. Bar. Assn.), 2011. Such a disclosure without the client’s consent would not only be a violation of the MLRCP, but could also pose significant harm if the peer reading the question is involved in representing the opposing side.3
Attorneys posting on a listserv should be aware that the Maryland Judiciary Case search, which is a public database for the Maryland judiciary, provides ready access to anyone seeking information about a pending case. It is therefore relatively easy for opposing counsel to search for a pending case by party name. In addition, opposing counsel can search by case number, and court location, the name of the attorney, and under other criteria. Accordingly, if attorney A were to mention the judge before whom his matter is pending on a listserv, it may be a simple matter for a third party on the listserv to identify the name of attorney A’s client.
Thus, this type of disclosure by attorney A would violate Rule 1.6. The committee, therefore, strongly advises a lawyer seeking advice on the listserv to use caution when posting any information about his or her case. Comment [4] to Rule 1.6 advises: “This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. A lawyer’s use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved.”
The Maryland Court of Appeals has addressed the issues of disclosures under Rule 1.6 holding: “There must be the potential for some harm to the client’s interest before an attorney will be considered to have violated the prohibition of MR 1.6(a) and to be subject to discipline, for having revealed information relating to representation of a client.” Harris v. Baltimore Sun Co., 330 Md. 595, 608, 625 A.2d 941, 947 (1993). Accordingly, the Committee believes that when applied to a listserv, Rule 1.6 incorporates a “rule of reason” that prohibits an attorney from revealing information having the potential to harm a client’s interests. Further, the Court has cautioned: “[i]dle gossip, of course, should be prohibited because it incurs the risk of inadvertent disclosure of harmful client information and has no reason for utterance other than titillation or braggadocio.” Id. at 608, 625 A.2d at 941 (quoting C. Wolfram, Modern Legal Ethics § 6.7.2).4
Lawyers having a single or known client whether public or private are faced with the problem that if they post facts on a listserv about a matter which they are handling, it is obvious who their client is. In Harris, this too was an issue, but one resolved by the Court. Id. In the context of Rule 1.6, for lawyers with an obvious client such as the Attorney General, a city attorney or in-house counsel to a corporation posting does not violate the rule by disclosing the identity of a client, but it does pose other issues affected by Rule 1.6. Because the Rule prohibits the disclosure of confidential information, a description of specific facts or hypotheticals that are easily attributable to the client likely violates Rule 1.6 in most contexts.
We, like other bar associations that have dealt with a similar question, caution attorneys against over-reliance on listservs. “[T]he consulting lawyer should not view the consultation as a substitution for the lawyer’s legal research and judgment.” IL Adv. Op. 12-15 (Ill. St. Bar. Assn.), 2012. Comment [5] to MLRPC 1.1 (Competence) states that “[c]ompetent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners.”
MLRPC 8.3
If posting lawyer A violates or appears to violate MLRPC 1.6 or another rule of professional conduct while seeking advice on a peer-to-peer listserv, then the question arises about the responsibilities of peers under MLRPC 8.3 who have read the posting lawyer’s post. MLRPC 8.3(a) states that “[a] lawyer who knows that another lawyer has committed a violation of the Maryland Lawyer’s Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.”5 However, Comment [3] to Rule 8.3 cautions that this duty to report does not apply to every single known violation:
If a lawyer were obliged to report every violation of the Rule, the failure to report any violation would itself be a professional offense. Such a requirement existed in many jurisdictions but proved to be unenforceable. This Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this Rule. The term “substantial” refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware.
Thus the question of whether a violation of MLRPC 1.6 via a listserv inquiry (as described above) creates a duty to report under MRPC 8.3 first turns of whether the violation “raises a substantial issue as to the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.”
In addition to the above threshold issue, the duty to report, also depends upon the knowledge and severity of the violation. The obligation of the attorney to report the posting lawyer only arises if she “knows” that the consulting lawyer has committed a reportable violation. MLRPC 1.0(g) states that: ““Knowingly,” “known,” or “knows” denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances.” Most states defined the “knowledge” standard as objective (while Rhode Island, for example, has defined the standard as subjective6).
The extent of knowledge required is not defined within the rule. Further, the rule does not impose a duty to investigate, unless the other attorney is within the same firm. However, while MLRPC 8.3 does not define the requisite level of knowledge to report, other jurisdictions do provide guidance on this duty. Massachusetts Rule 8.3, Comment [3] provides that “a lawyer has knowledge of a violation when he or she possesses supporting evidence such that a reasonable lawyer under the circumstances would form a firm opinion that the conduct in question had more likely than not occurred.”7
Again, reporting is only required where the over disclosure raises a substantial question as to the lawyer’s honesty, trustworthiness, or fitness of the lawyer in other respects. The committee does not believe that, absent aggravating circumstances, over disclosure on a listserv raises serious questions on those fronts.
While Maryland does not give us further guidance on what acts constitute aggravating circumstances, other states do. Under Massachusetts Rule 8.3 for example, Comment [3] provides:
A lawyer must report misconduct that, if proven and without regard to mitigation, would likely result in an order of suspension or disbarment, including misconduct that would constitute a ‘serious crime’ as defined in S.J.C. Rule 4:01, § 12(3). Precedent for determining whether an offense would warrant suspension or disbarment may be found in the Massachusetts Attorney Discipline Reports. Section 12(3) of Rule 4:01 provides that a serious crime is “any felony, and ... any lesser crime a necessary element of which ... includes interference with the administration of justice, false swearing, misrepresentation, fraud, willful failure to file income tax returns, deceit, bribery, extortion, misappropriation, theft, or an attempt or a conspiracy, or solicitation of another, to commit [such a crime].” In addition to a conviction of a felony, misappropriation of client funds or perjury before a tribunal is common examples of reportable conduct.
While the Rule does not appear to require contacting the offending attorney, the Committee hopes and recommends that the peers on the listserv contact attorney A directly to advise him of the violation of the Rule. This step serves the laudable goal of allowing the attorney to avoid violating the relevant Rule in the future and to take any other corrective actions to ameliorate the violation.
Conclusion
A lawyer may consult with other lawyers on a peer-to-peer listserv provided that the lawyer avoids any risk that the client could be identified by virtue of the inquiry. If the lawyer does not disclose information which reveals the identity of the client, then he is not required to obtain informed consent of the client under Rule 1.6. Otherwise absent other exceptions under Rule 1.6, the attorney must obtain informed consent of the client. Special care must be taken when a client’s situation is so unique that even an inquiry phrased in hypotheticals would reveal protected information.
If an attorney using a peer-to-peer listserv knows that a consulting lawyer has violated Rule 1.6 by posting on the listserv, that attorney must weigh many factors when deciding whether she has a duty to report the consulting lawyer to bar counsel. These factors include, but are not limited to, the severity of the violation and whether the consulting attorney made the violation knowingly or accidentally. The attorney is not required to report the offending lawyer if doing so would cause the reporting attorney himself to violate Rule 1.6.
Generally, absent aggravating circumstances, a known violation of Rule 1.6 on a listserv will not create a duty to report the posting attorney under Rule 8.3.
1. “Listserv” Merriam-Webster Dictionary of the English Language, www.merrimawebster.com, accessed on November 20, 2014.
2. Comment [5] to Rule 1.6 says: “Lawyers in a firm may, in the course of a firm’s practice, disclose to each other information relating to a client of the firm, unless the client had instructed that particular information be confined to specified lawyers.”
3.In fact, the posting lawyer should assume that adversaries and third parties will be viewing all postings.
4. The Committee notes a perceived tension between the Harris opinion and the language of Comment [3] to Rule 1.6: “The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Maryland Lawyers’ Rules of Professional Conduct or other law.” The Rules Committee may want to consider whether it is appropriate to update or clarify the language of Comment [3] or otherwise address the perceived tension.
5. 8.3(c) in part, provides that the rule does not require disclosure of information otherwise protected under Rule 1.6.
6. Rhode Island Eth. Adv. Panel Op. 95-41 (1995).
7. Massachusetts Rules of Professional Conduct (MRPC) 8.3 http://www.mass.gov/obcbbo/rpc8.htm#Rule 8.3; See also, “Duty to Report Attorney Misconduct”, Widner University School of Law, Law Review, January 2010, p.3.