The American Bar Association’s ethics panel spontaneously issued an ethics opinion on the usage of listservs by lawyers – a technology whose adoption is considerably declining. This has raised questions about the timeliness of the decision.
Lawyers have been interacting with each other on listservs for around 30 years. One of the earliest and most popular listservs, the ABA’s own SoloSez, was launched in 1996. Unfortunately, by internet standards, listservs have become antiquated and their adoption among lawyers has significantly plummeted over the past decade. Lawyer-only listservs are now mostly restricted to small specialty domains of law.
The recently issued opinion, Formal Opinion 511, dated May 8, 2024, takes a conservative and somewhat confining approach to the issue. It cautions that even a general query about the law posted on a listserv might, in certain situations, inadvertently reveal the identity of the client or details of their situation.
The ABA’s concern primarily rests on Model Rule 1.6, which forbids a lawyer from revealing information related to the representation of a client, sans the client’s informed consent. This rule applies to all client information, even including the client’s identity.
The ABA panel further distinguished this opinion from a previous opinion issued in 1998. The prior opinion stated that a lawyer has implied authorization to discuss a case with an outside lawyer to secure advice about the case, provided the lawyer reasonably believes the disclosure will enhance the representation. The shear difference with a listserv is that the lawyer is revealing the information to a group of lawyers. Plus, the lawyer has no control over ensuring the client’s information won’t be further disclosed beyond the listserv or used against the client in an undesired manner.
The opinion advised lawyers on obtaining a client’s informed consent before posing inquiries on a listserv. Lawyers should explain the risks the client might face including the potential wider dissemination of their information over social media. Regular listserv users might want to obtain the client’s consent at the onset of the representation, to ensure compliance.
Considering all this, some professionals feel that the ABA has taken an overly stringent approach to an issue that should have been addressed much earlier. This sudden move on a dated technology is seen as too much, and too late. For a comprehensive read, refer to the full article.