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Shari Klevens (left) and Alanna Clair, Dentons US[/caption] It is well understood that one of the primary duties owed to clients by attorneys is the duty to maintain confidentiality. Indeed, pursuant to ABA Model Rule of Professional Conduct 1.6, “[a] lawyer shall not reveal information relating to the 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 specific exceptions identified in the Rule 1.6(b)].” A violation of this obligation can result in significant penalties for a lawyer, whether from the client or the bar.Many firms, in reviewing their obligations under their state’s version of Rule 1.6, had concluded over the years that the protections of this rule additionally impact lawyers’ social media. Indeed, many lawyers have taken care to ensure that they do not post confidential client information online without client consent. In March of this year, the ABA’s Standing Committee on Ethics and Professional Responsibility issued an opinion regarding the intersection of Model Rule 1.6 and attorney blogs or other public online statements: “Lawyers who blog or engage in other public commentary may not reveal information relating to a representation, including information contained in a public record, unless authorized by a provision of the Model Rules.” In light of the requirements of Rule 1.6, this pronouncement has been called, by some, unnecessary or even burdensome. Here are some take-aways from the opinion for lawyers and law firms.The Duty to Maintain Confidentiality Is WidespreadThe opinion confirms, as many lawyers presumed, that the obligations of the rules do not vanish online, regardless of whether lawyers are participating in blogs, website postings, microblogs (like Twitter), webinars, podcasts or other online public commentary. Although most attorneys appreciate that they cannot disclose attorney-client privileged information to those outside the relationship, Comment [2] of Model Rule 1.6 notes, “[a] fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation.” Thus, information that is protected as “confidential” is generally broader than what is considered “privileged.” As confirmed by the opinion, confidential information can include the client’s identity. The Duty to Maintain Confidentiality May Extend to the “Hypothetical”Many attorneys and firms take steps to protect confidential information from being disclosed. That is because, generally speaking, a client’s confidential information may no longer be “confidential” if it becomes publicly known.Opinion 480 extends these protections even further. The opinion states that, even if there is information about a client in a court’s order or other public record, the lawyer’s duty of confidentiality still applies to “information related to a representation, whatever its source and without regard to the fact that others may be aware of or have access to such knowledge.” Although different jurisdictions have enacted Rule 1.6 with variation, the opinion advises: “Rule 1.6 does not provide an exception for information that is ‘generally known’ or contained in a ‘public record.’"Thus, attorneys and firms may have an obligation to refrain from online commentary, even for those client details that can be publicly confirmed from other sources.The opinion additionally concludes that attorneys can consider whether providing a hypothetical situation runs afoul of Rule 1.6. This is a common technique for attorneys seeking guidance from others, or even in sharing real-life examples in seminars. However, attorneys in those situations will often take care to disguise their hypothetical well enough such that a third party cannot ascertain the identity or situation of the client. Rule 1.6(b) May Not Apply To These StatementsModel Rule 1.6(b) provides a host of exceptions to the general prohibition on revealing confidential information. It allows lawyers to reveal confidential information to the extent necessary to prevent certain death or bodily harm, to prevent the client from committing a crime, to defend against a claim brought by the client or to comply with a court order. As enacted, these exceptions may vary over different jurisdictions.However, the opinion suggests that these exceptions are less likely to be at play when it comes to a lawyer providing online commentary: “because it is highly unlikely that a disclosure exception under Rule 1.6(b) would apply to a lawyer’s public commentary, we assume for this opinion that exceptions arising under Rule 1.6(b) are not applicable.” Thus, an attorney may consider if there are other exceptions—such as those identified in Rule 1.6(a)—that would permit the public disclosure of client confidential information, such as client consent. Indeed, many attorneys who are unsure of what can be disclosed (or if the client would object to the attorney commenting on some publicly available information) will simply discuss the issue with the client to see if they consent.Criticism of the OpinionCritics of the opinion say that it unnecessarily implicates attorneys’ First Amendment rights and needlessly prevents attorneys from commenting on publicly available information.Perhaps anticipating criticism, the opinion notes that restricting lawyers’ public speech is nothing new. Indeed, lawyers’ conduct may be “constitutionally constrained” by professional standards, such that lawyers may have “limited” free speech rights when it comes to client representations. Certainly, there are things that lawyers cannot say or do by virtue of their professional obligations. In addition, critics have said that this opinion needlessly restricts lawyers from commenting on publicly available client information. According to some, if there is information that is published publicly (such as in a court order or pleading), it is no longer confidential and the attorney is no longer obligated to protect it. There is something of a split among states regarding whether attorneys should still strive to protect information that has become public via other sources, so the impact of this opinion remains to be seen. However, attorneys and law firms can take lessons from this opinion to help ensure that their public statements do not implicate ethical issues.Shari L. Klevens is a partner at Dentons US in Atlanta and Washington and serves on the firm’s U.S. board of directors. She represents and advises lawyers and insurers on complex claims and is co-chair of Dentons’ global insurance sector team.Alanna Clair is a partner at Dentons US in Washington and focuses on professional liability and insurance defense. Shari and Alanna are co-authors of “The Lawyer’s Handbook: Ethics Compliance and Claim Avoidance” and the upcoming 2019 edition of “Georgia Legal Malpractice Law.”