Suppose you have a legal or procedural issue you don’t quite know how to tackle? Suppose you’re wondering whether you have a conflict of interest? What if you want to know more about a judge that you’ve never tried a case before? Who are you going to call? If you’re in a large firm, perhaps asking a more senior lawyer is the ticket. But what if you are the senior lawyer in a small firm or if you’re a solo practitioner? If you belong to a legal Listserv, especially one that focuses on your practice area, this might seem like an easy way to get an answer or at least some input. Just throw your question out there and see what you get back.
Be careful, though. You must remember your obligation to protect your client’s confidential information under Rule 1.6. OK, so you pose your inquiry in a hypothetical. Is that good enough? Maybe. The problem with Listservs is that you may not know everyone on the receiving end of your inquiry, especially if the Listserv has a large membership. Suppose you have a question about filing a motion to remove a matter to Federal Court. You know that opposing counsel is not even a member of the Bar Association, so you feel comfortable posing a question about how to file the motion. Unbeknownst to you, however, opposing counsel’s law partner is on the Listserv. Although the inquiry is in the form of a hypothetical, there is enough information for opposing counsel’s partner to surmise that you are talking about a case his firm handles. Opposing counsel now knows you’re planning to file this motion and perhaps takes some preemptive action in response. You may have jeopardized a strategic move by making the inquiry on Listserv. If someone can figure out the client or case from your hypothetical, then you may have breached the duty of confidentiality, unwittingly.
What can you do? Consider first the kind of inquiry that you have and carefully weigh the risk of opposing counsel, the opposing party, or third parties learning confidential information. Even a hypothetical question may pose some risk. Then, consider whether you may have other options. A hypothetical posed to an individual colleague with no involvement with any of the parties or counsel involved may be sufficient. Keep in mind that there are other options depending upon the type of question that you have. For example, Rule 1.6(b)(5) permits lawyers to disclose confidential information to secure legal advice about compliance with the Rules of Professional Conduct. This means that you may call the State Bar’s Ethics Hotline, a Lawyer’s Mutual (liability insurance) claims counselor, or another lawyer who gives advice about the Rules of Professional Conduct (guess who). In addition, Rule 1.6 permits disclosure of confidential information to a lawyers’ assistance program approved by the State Bar such as LAP, LAMP or the Center for Practice Management at the North Carolina Bar Association.
Bottom Line: Listservs provide a great service to the profession. Just carefully consider the possible consequences before posting about a client matter, even in a hypothetical. And if the risk is too great, there just may be a better option.