/>iAttorneys often find it helpful to test legal theories by presenting hypothetical or anonymized descriptions to consulting attorneys outside of their firms. Listservs* are a great way for attorneys to share information and knowledge. However, the use of listservs poses particular risks that must be considered before posting.
On May 8, 2024, the American Bar Association (ABA) issued Formal Opinion 511 (Opinion) explaining that attorneys may not post on listservs information relating to a representation that poses a “reasonable likelihood” that a recipient could “infer the identity of the lawyer’s client or the situation involved” without their client’s informed consent.
ABA Model Rule of Professional Conduct 1.6(1) (Rule 1.6) restricts attorneys from revealing even publicly available and non-privileged information relating to a representation that poses a “reasonable likelihood” that a recipient could “infer the identity of the lawyer’s client or the situation involved” unless:
• The client has provided affirmative informed consent or
• The disclosure is impliedly authorized in order to carry out the representation.
BACKGROUND
A 1998 ABA formal opinion explained that a lawyer had implied authorization to disclose anonymized information to outside consulting attorneys “to obtain advice about a matter when the lawyer reasonably believes the disclosure will further the representation.” Lawyers seeking to test legal theories or continue their professional development may disclose information related to a representation to an attorney outside of their firm without obtaining their client’s informed consent. The disclosure is permissible “when such information is anonymized or presented as a hypothetical and the information is revealed under circumstances in which ‘the information will not be further disclosed or otherwise used against the consulting lawyer’s client.’”
Disclosure of anonymized information to a known attorney does not require client consent because the consulting attorneys are expected to ascertain whether there is a conflict of interest and maintain confidentiality even in the absence of an explicit confidentiality agreement.
In contrast, listserv participants are often anonymous to the poster. The disclosing lawyer cannot determine if the listserv participants have interests adverse to the client or can be trusted to maintain confidentiality. Even an opposing party’s attorney may be a listserv participant. Indeed, posting on a listserv is inconsistent with the maintenance of confidentiality, and so, it is vital that no client confidential information is shared with a listserv community.
SUMMARY
The Opinion does not foreclose (and in fact encourages) participation in listservs. However, special care should be taken when posting, especially when the post relates to an unusual fact pattern, a highly publicized matter, a limited geographic area or a specialized practice area. In addition to using anonymized hypotheticals, attorneys should consider whether to obtain their client’s informed consent or refrain from posting if there is a reasonable concern that other members of the listserv may be able to identify the client or matter from the information provided.
* The term Listserv has been used to refer to electronic mailing list software applications in general, but is more properly applied to a few early instances of such software, which allows a sender to send one email to a list, which then transparently sends it on to the addresses of the subscribers to the list.
