Part of our responsibility as attorneys is to stay current on changes in the law. Owing to their convenience and accessibility, online platforms are increasingly popular and useful tools to the legal profession. Lawyers, however, must ensure that their postings comply with the rules of ethics and professional responsibility.
A peer-to-peer listserv is an application that distributes messages to subscribers on an electronic mailing list. Their purpose is to facilitate communication between members. The Maryland State Bar Association (“MSBA”) and other organizations provide these email discussion platforms as a resource for their members. Subscribing listserv attorneys have the benefit of receiving and commenting on emails discussing updates in specific areas of practice, asking for and giving advice on various client scenarios and locating professionals in a specific field of law or geographic area.
A number of provisions of the Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) apply to usage of listserv. In a 2015 opinion released by the Committee on Ethics, the MSBA clarified the implication of certain rules which may arise during the use of listservs. Specifically, the Committee focused on MLRPC 1.6. Confidentiality of Information.
When seeking advice using a listserv, “A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent [or] the disclosure is impliedly authorized in order to carry out the representation…” MLRPC 1.6. Thus a hypothetical question that does not reveal identifying information may be acceptable. It is important to remember, however, that even an abstract question can make a client easily identifiable and that a description of specific facts or hypotheticals that are easily attributable to a client likely violates MLRPC 1.6 in most contexts. MSBA, Ethics Docket No. 2015-03. Lawyers should not reveal information on a listserv that they would not want their opponents (or their clients) to see.
While client confidentiality is crucial when participating in listserv or on social media, lawyers must also keep in mind that it is imperative to always be respectful, courteous, and professional to fellow practitioners. An attorney should demonstrate respect for the legal system and those who serve it. MLRPC 19- 300.1(5).
The respect includes being polite, respectful and complying with the forum’s rules. MSBA posts current and proposed “Email Discussion List Rules” Both sets of Rules encourage attorneys to stay on topic and use the listserv for its intended use. Listservs are not intended to discuss non-legal related matters, including but not limited to social commentary, entertainment or content intended as humor. Listservs are public and meant for constructive exchanges.
As with new technologies and the social media, the professional lawyer takes care to maintain the privacy and confidentiality of client information, demonstrate respect for clients and peers and uphold the trust in attorneys and in the legal profession.