Tuesday, February 17, 2009
Posted by Alan Childress
Ed Poll of LawBizBlog writes that client names are confidential, such that a lawyer's marketing of his or her past successes is basically different from how other occupations can tout their experiences and connections. (Ed would be reluctant to reveal past clients even with client consent, though I am not opposed to it with such consent.) In this marketing area, "The legal profession is different... our approach must be different."
The confusion in real life that prompts such reminders seems to be the imperfect overlap between the ethical duty of confidentiality (under MR 1.6) and the evidence rule of privilege (usually under state substantive law). Just because a client's name or existence may not be privileged (e.g., state courts that make lawyers reveal drug kingpin clients and the source of fees) does not mean that the information can be voluntarily revealed as an ethical matter. I go round and round on this distinction every year with university counsel's office when they ask us to name outside clients for COI disclosure purposes. I say I cannot reveal that without consent (whatever the privilege rule would say as to allowing a court to order me to name them), though of course I can certify that none of my clients has links to the university or interests adverse to it.
Ed uses the case of Quinn Emanuel and its marketing on a confidential settlement agreement as an example of the problem here.