In most jurisdictions, the ethical duty of confidentiality applies to all information relating to the representation of a client or former client under the jurisdiction’s counterpart to ABA Model Rule of Professional Conduct 1.6. The duty applies whether or not the information relating to the representation is privileged. Unless limited in scope by a jurisdiction's ethical rules, the duty applies regardless of whether the information came from the client or from another source and it applies even if the information is accessible from other sources, including public sources.
Unless the lawyer first obtains the client's or former client’s informed consent to the disclosure of confidential information, a lawyer using a listserv such as NACDLConnect must not offer any information about a client's or former client’s case if there is a reasonable likelihood that the post will allow a reader to recognize or deduce the client's identity or the situation involved.
The client's informed consent to disclosure on a listserv is not needed when the lawyer's post is scrubbed of any information that reveals or leads to the revelation of any of the client's ethically confidential information. But merely anonymizing or hypothesizing a situation in a post will often be insufficient to camouflage the client or the litigation. The post must be stripped of details that could disclose ethically confidential information or that could lead to the discovery of such information. In certain situations, such revealing information could include the court in question, the geographical location of the posting attorney, or even the litigation question asked, to name but a few.
To camouflage the question posed, consider revisions such as changing the gender of the client or other key players, the jurisdiction to another with comparable law, the law-enforcement agency involved, the crime(s) at issue, but whatever modifications are made must ensure there is no reasonable likelihood that a reader will be able to extrapolate the client’s identity or the litigation involved. If potential readers of the post know the questioner’s clientele or the nature of that practice, it may be extremely difficult to conceal either the client or the proceeding.
A general client waiver allowing the disclosure of ethically confidential information on listservs will be insufficient, because the client’s consent will not be adequately informed unless the attorney first advises the client of both the benefits and disadvantages of the particular disclosure on the listserv. This may require discussing not only the nature of listservs in general, but also the specifics of the listserv to be used. It will often be prudent to limit the client's informed consent to disclosure of the specific post the lawyer wishes to make and its contents.
