ABA Ethics Opinion on confidentiality draws criticism

Back in December I wrote about ABA Standing Committee on Ethics and Professional Responsibility Ethics Opinion No. 479 (here) which discussed, among other things, the distinction between information which is generally known and information that is in the public record.  In my opinion, the opinion did not really add anything in terms of substantive law we did not know already, but it did give some guidance on how to determine if information should be considered to be generally known.

A few days ago, the Committee followed up that opinion with another one also on the topic of confidentiality and it has not been well received by some.  As one commentator wrote, "Granted, the ABA has a reputation for being a bit behind the curve on technology issues. But in reading this opinion, one has the feeling that someone at the ABA found it in a desk drawer where it had been lost for a decade and decided, “What the heck, let’s publish it.”"  See here.

The Law for Lawyers Today has a short comment on the opinion here.  So does Ethical Grounds.

Like Opinion No. 479, the new opinion (No. 480), which is available here, does not seem to say anything new at first.  Essentially, it holds that lawyers should not disclose confidential information in violation of the rules when blogging.  This sounds obvious, but the opinion has been criticized by some because it repeats the notion that information that is in the public record can be confidential and disclosing it can be a violation of the rules (unless allowed by one of the exceptions to the rule).

Again, in terms of substantive law, this is nothing new.   But the opinion's conclusion does raise the question of whether it would be a violation of the first amendment for the state to discipline a lawyer for disclosing information that is in the public record.

I know of only one case that has addressed this question directly (Hunter v Virginia State Bar) and it held that disciplining a lawyer for disclosing confidential information in the public record would violate the First Amendment.

Opinion 480 addresses the issue and points out other court decisions that disagree with Hunter as well as other secondary sources that address the issue.

So, go ahead and read the opinion (particularly the section called First Amendment Considerations, and its footnotes) and then read Robert Ambrogi's criticism here or Avvo's Josh King's comments here.