The American Bar Association (ABA) recently issued a delayed ethics opinion concerning lawyers’ usage of listservs, as detailed in an article by LawNext. Listservs, digital mailing lists facilitating communication among the legal community, have been in use for roughly 30 years, with one of the earliest and most well-known lawyer-to-lawyer listservs, ABA’s SoloSez, dating back to 1996. Today, however, they are a fading technology, as their usage has seen a significant decline over the past decade.
Despite this decline, the ABA has decided to produce a formal opinion on the use of listservs. The sudden focus on such an antiquated technology has raised questions within the legal sector. The issued opinion is conservative in nature and revolves around protecting client confidentiality on the discussed platforms.
The ABA’s newly released Formal Opinion 511 cautions that even a general query about law, such as a case on a relevant topic, “may in some circumstances permit other users to identify the client or the situation involved.” This opinion primarily targets lawyers who use lawyer-to-lawyer listservs for inquiring about an ongoing case.
The ethical quandary here lies in the protection of client information as per Model Rule 1.6, which forbids a lawyer from revealing information related to the representation of a client without their informed consent.
In the context of listservs, the ABA panel emphatically states that a lawyer is forbidden from posting comments or questions related to a representation—even in hypothetical or abstract form—without the client’s informed consent, if the posts might allow a reader to infer the client’s identity or case details, thus potentially disclosing sensitive information.
The panel further points out that on typical listserv discussion groups, the participants’ identities and interests are unknown. As such, an individual cannot reasonably be asked to maintain the confidentiality of information shared or be trusted not to share the details further, potentially against the client’s interests.
However, the ABA points out that not all inquiries cross ethical boundaries. As per their official opinion, consultation with clients about these risks during the obtaining of informed consent and careful usage may lead to beneficial discussions on listservs. Nonetheless, the belated release and the stringent approach of this opinion on a fading platform have sparked skepticism in the legal community.