April 14, 2011
Attorneys Seeking Advice on Listservs
I am on several listservs of lawyers practicing in areas of the law that I teach. Attorneys on those listservs sometimes post the facts of situations they are dealing with and ask others for advice. This raises two concerns.
Ethical Issues (and the new Oregon State Bar opinion)
Does the exposure of the facts of the client’s situation to outsiders, even if the client is not named, potentially breach the attorney-client privilege? A newly released Oregon State Bar opinion (available at www.osbar.org/_docs/ethics/2011-184.pdf) addresses this issue. The answer, according to the opinion, depends on whether the inquiry would allow others on the list to identify the client. If the facts provided would not permit outsiders to identify the client, the inquiry is not an ethical violation. But, “[w]here the facts are so unique or where other circumstances might reveal the identity of the consulting lawyer’s client even without the client being named, the lawyer must first obtain the client’s informed consent for the disclosures.” The opinion notes that lawyers representing adverse or potentially adverse parties may be participating in the listserv, and disclosure to them could potentially harm the client’s interests.
This opinion’s prohibition is broader than it might seem on first reading. If the client is already involved in negotiations or a relationship of some kind with another party, it would not take much to enable that other party’s attorney to identify the client—especially if the other party’s attorney knows the attorney posting the inquiry represents the client.
And what about the possibility of future identification of the client? Assume that, at the time the inquiry is posted, no one is able to identify the client. Once the client engages in the transaction proposed in the inquiry, represented by the attorney who posted the inquiry, it will be much easier to identify who the client was. Would an adverse party in later negotiations or litigation be able to use the attorney’s earlier inquiry to the client’s detriment?
Should the Attorney Be Representing the Client on the Matter?
Some attorneys' inquiries on listservs demonstrate substantial knowledge of the subject matter—raising issues that only an expert in the field could have thought of. Other inquiries, however, show that the attorney obviously doesn’t have even a rudimentary understanding of the basic law in the area. This seems to be a particular problem with securities law issues; securities law is notoriously difficult for someone without any background in the area.
I wonder in some of these cases if the attorney should have accepted the representation in the first place. I am sure that, if the client knew how little the attorney understood the issue, the client would not want this particular attorney advising it. The problem is magnified by the naivete of some of the responses to such inquiries—answers that no one should be relying on.
Don’t Do It
My advice, whether or not it’s ethically required: don’t seek assistance on pending matters on listservs.