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Rules, Procedure, Comments

All opinions of the Ethics Committee are predicated upon the North Carolina Rules of Professional Conduct. Any interested person or group may submit a written comment – including comments in support of or against the proposed opinion – or request to be heard concerning a proposed opinion. The Ethics Committee welcomes and encourages the submission of comments, and all comments are considered by the committee at the next quarterly meeting. Any comment or request should be directed to the Ethics Committee at ethicscomments@ncbar.gov no later than December 22, 2020.

Council Actions

At its meeting on October 23, 2020, the State Bar Council adopted the ethics opinions summarized below:

2020 Formal Ethics Opinion 3
Solo Practitioner as Witness/Litigant

Opinion rules that a solo practitioner/owner of a PLLC is not prohibited from representing the PLLC and testifying in a dispute with a former client.

2020 Formal Ethics Opinion 4
Investment in Litigation Financing

Opinion rules that a lawyer may not invest in a fund that provides litigation financing if the lawyer’s practice accepts clients who obtain litigation financing.

Ethics Committee Actions

The Ethics Committee considered a total of 12 ethics inquiries, including the two opinions adopted by the council referenced above. Five inquiries were sent or returned to subcommittee for further study, including inquiries addressing a lawyer’s professional responsibility when asked by a client to take possession of evidence constituting contraband, a lawyer’s duty to recognize and avoid counterfeit check scams, and a lawyer’s professional responsibility in utilizing machine learning/artificial intelligence in a law practice. The committee also reconsidered Proposed 2020 Formal Ethics Opinion 2 after receiving an adverse comment to the previously published opinion; the committee amended the opinion and voted to republish the opinion for comment, found below. Lastly, the committee approved the publication of proposed opinions for the remaining four inquiries, which appear below.

Proposed 2019 Formal Ethics Opinion 4
Communications with Judicial Officials
October 22, 2020

Proposed opinion discusses the permissibility of various types of communications between lawyers and judges.

In connection with the adoption by the council of the opinion below on ________, the following prior ethics opinions were withdrawn: RPC 237, 97 FEO 3, 97 FEO 5, 98 FEO 12, 98 FEO 13, 2001 FEO 15, 2003 FEO 17.

Lawyers communicate with judges on a daily basis. Communicating with members of the judiciary is required for the effective representation of clients and the administration of justice. These communications range from formal pleadings and arguments during public proceedings to informal communications about scheduling dilemmas.

Over the years, the Ethics Committee has issued a number of opinions interpreting and applying the Rules of Professional Conduct to various lawyer-judge communications. See RPC 237, 97 FEO 3, 97 FEO 5, 98 FEO 12, 98 FEO 13, 2001 FEO 15, 2003 FEO 17. However, these opinions—spanning 30 years—were based upon different iterations of the Rules of Professional Conduct. This opinion addresses and clarifies a lawyer’s responsibilities under the current Rules of Professional Conduct in communicating with a member of the judiciary while acting in a representative capacity. As a result, upon adoption of the present opinion, the State Bar Council withdrew the aforementioned opinions.

In general, to ensure fair access to the courts and to avoid the appearance of impropriety, a lawyer is encouraged to refrain from communicating directly and exclusively with the presiding judge in a particular case—including communications about scheduling or administrative matters—unless authorized by law or by the court. Instead, a lawyer, acting in accordance with the Rules of Professional Conduct and with copy to opposing counsel when appropriate, should attempt to send any communications intended for the presiding judge through the clerk, the trial court administrator, the trial court coordinator, or some other court personnel aside from the presiding judge who can relay the communication to the presiding judge. The Rules of Professional Conduct, however, do not strictly prohibit all communications with judges. Accordingly, this opinion addresses a lawyer’s professional responsibility in communicating directly with a member of the judiciary when not otherwise prohibited by law or by the court.

Additionally, and importantly, the following scenarios address a lawyer’s professional responsibility in communicating with a member of the judiciary during the course of litigation where the opposing party is represented by counsel. While this scenario is common, it is very possible that a lawyer may need to communicate with a member of the judiciary during the course of litigation where the opposing party is self-represented. Although this opinion analyzes only the former scenario, a lawyer’s professional responsibility to avoid improper communications with the tribunal applies equally to situations where the opposing party is represented and where the opposing party is pro se. As part of the ongoing effort to preserve the integrity of and instill confidence in the justice system, a lawyer should take great care to ensure his or her conduct in communicating with a tribunal is compatible with the Rules of Professional Conduct, particularly when dealing with an unrepresented party.

Inquiry #1:

Lawyer A represents Wife in a domestic case against Husband, who is represented by Lawyer B. The case was filed in County X. Lawyer B scheduled a hearing in the domestic case in County X. Lawyer A subsequently learned that the court of appeals scheduled oral arguments in one of Lawyer A’s other cases for the same day as Lawyer B’s hearing in County X. Lawyer A needs to inform the court in County X of the scheduling conflict and request that the hearing be continued.

May Lawyer A file a motion to continue the hearing with the clerk of court in County X, with a copy to Lawyer B?

Opinion #1:

Obviously, yes. Communication between lawyers and the courts by way of formal filings are the backbone of an effective justice system. As such communications occur entirely on the record and with a copy to the opposing counsel or the opposing party, the communications do not raise any of the concerns underpinning the prohibition on ex parte communications under Rule 3.5. Rule 3.5(a)(3) prohibits a lawyer from communicating ex parte with a judge or other official unless authorized to do so by law or court order. Rule 3.5(d) defines “ex parte communication” as “a communication on behalf of a party to a matter pending before a tribunal that occurs in the absence of an opposing party, without notice to that party, and outside the record.” The primary purpose of the prohibition on ex parte communications is to ensure fair and equal access to the presiding tribunal by parties and their representative counsel. However, the submission to a tribunal of formal written communications, such as pleadings and motions, pursuant to the tribunal’s rules of procedure, does not create the appearance of granting undue advantage to one party. Presuming the filings comply with the Rules of Civil Procedure, the local rules, and any other requirements imposed by law or court order, such communication is entirely permitted under the Rules of Professional Conduct.

Inquiry #2:

Lawyer A represents Wife in a domestic case against Husband, who is represented by Lawyer B. Lawyer A’s young child is sick, requiring Lawyer A to stay home to care for his child for the rest of the week. Lawyer A is scheduled to appear in court for a hearing in Wife and Husband’s domestic case tomorrow, but can no longer attend the hearing due to childcare issues. May Lawyer A inform the court of his inability to attend court and informally request that the hearing be continued by email or text message to the judge presiding in the domestic case, without copying Lawyer B?

Opinion #2:

No. The definition of ex parte communications encompasses all communications concerning a matter that is pending before a tribunal, including scheduling issues concerning the pending matter. Rule 3.5(d). The Rules of Professional Conduct do not exempt scheduling matters from the prohibition on ex parte communications. Accordingly, although ex parte communications concerning scheduling matters are often limited and innocent in nature, they are prohibited unless authorized by law or court order. In this instance, Lawyer A’s communication is sent a) on behalf of himself and his client, b) concerning a matter pending before the tribunal (the domestic proceeding), c) outside of the record, d) without notice to the opposing counsel, and e) in the absence of opposing counsel. Accordingly, Lawyer A’s communication is an ex parte communication with the court, and thus prohibited unless authorized by law or court order.

Inquiry #3:

Same scenario as Inquiry #2. Does Lawyer A cure the ex parte nature of his communication by sending an email or text message to all judges in his district concerning his inability to attend court that week and requesting all hearings for which he is responsible during the week be continued, without copying Lawyer B or any other opposing counsel or party?

Opinion #3:

No. If Lawyer A has a matter pending and the communication is sent to the judge presiding in that matter, amongst other judges, the communication remains ex parte and is prohibited. See Opinion #2. Depending on how many matters Lawyer A has pending, the single, generic communication described in this inquiry may constitute multiple instances of prohibited ex parte communication.

Inquiry #4:

Same scenario as Inquiry #2. May Lawyer A inform the court of his inability to attend the day’s hearing and informally request that the hearing be continued via email or text message to the presiding judge, with Lawyer B copied on the email or text message?

Opinion #4:

No. Absent prior authorization by the law or presiding judge, a communication to a judge is a prohibited ex parte communication if made “in the absence of an opposing party [or counsel]” and “without notice to that party [or counsel].” Rule 3.5(d). Previous definitions of ex parte communications permitted communications to a judge such as that described in the present inquiry so long as opposing counsel was simultaneously provided with the communication. However, this exception to ex parte communications relied on a flawed assumption that simultaneous provision of a communication resulted in simultaneous receipt of that communication, particularly with regard to electronic communications. Additionally, at times the exception was misunderstood as permitting both administrative and substantive communications concerning pending matters with the presiding judge so long as opposing counsel was copied on the communication; this misunderstanding led to the exception being strategically utilized to gain unfair advantage over opposing counsel. Accordingly, in an effort to prioritize fairness and equal access to the tribunal, the current definition of ex parte communications eliminates the exception for simultaneously provided communication in favor of a requirement that communications with the presiding judge be made in the presence of the opposing party, with proper notice to opposing counsel, and/or on the record. Rule 3.5(d). As a result, merely copying opposing counsel on a communication to a judge does not qualify the communication as being made in the presence of opposing counsel or with notice to counsel to avoid classification as a prohibited ex parte communication.

As noted at the outset of this opinion, a lawyer should refrain from communicating with the presiding judge about scheduling or administrative matters, and instead attempt to communicate his unavailability to the clerk, the trial court administrator, the trial court coordinator, or some other court personnel aside from the presiding judge (with a copy to opposing counsel) who can relay the communication to the presiding judge. Otherwise, Lawyer A must provide reasonable, advance notice to opposing counsel of the need and intention to send the communication to the judge, followed by Lawyer A copying opposing counsel on the eventual communication to the judge.

Inquiry #5:

Lawyer A is scheduled to appear in court for a hearing later in the day. On the way to the courthouse, Lawyer A gets in a significant car accident and is unable to attend the hearing. Lawyer A has limited time to communicate his unavailability to the presiding judge and wants to contact the presiding judge directly via email or text message, copying opposing counsel on the communication. Does the analysis under Opinion #4 change due to the emergency circumstances?

Opinion #5:

No. Although the Rules of Professional Conduct are rules of reason, see Scope cmt. [1], a lawyer should strive to comport his conduct with the Rules, even in emergency situations. Absent prior authorization by the law or the presiding judge, or unless Lawyer A provided notice to opposing counsel of the communication with the judge, Lawyer A’s communication would be a prohibited ex parte communication. See Opinions #2 and #4.

Inquiry #6:

Same scenario as Inquiry #2. May Lawyer A, with proper notice to Lawyer B, communicate his inability to attend the hearing and informally request a continuance via email or text message to the presiding judge, with Lawyer B copied on the email or text message, if the email or text message contains additional argument from Lawyer A on the matter to be heard by the court in the upcoming proceeding?

Opinion #6:

No. Even though such a communication may not be a prohibited ex parte communication, it is still improper. Unsolicited communications addressing the merits of the underlying matter made outside the ordinary or approved course of communication with the court are prejudicial to the administration of justice in violation of Rule 8.4(d). As noted above, the purpose of the prohibition on ex parte communications is to ensure fair and equal access to the presiding tribunal by parties and their counsel. Allowing one party unfettered access to make off-the-record arguments to the presiding judge via electronic communication undermines the principle of fair and equal access to the presiding judge. See Rule 3.5 cmt. [8] (“All litigants and lawyers should have access to tribunals on an equal basis. Generally, in adversary proceedings, a lawyer should not communicate with a judge relative to a matter pending before, or which is to be brought before, a tribunal over which the judge presides in circumstances which might have the effect or give the appearance of granting undue advantage to one party.”). It is also antithetical to the notion that cases are tried in a public forum rather than in private discussions behind closed doors. Providing notice and copying the opposing party/counsel on such a communication does not remedy these problems. Unless the communication is authorized by law or court order, or unless the communication is solicited by the presiding judge, informal communications that address the merits of the case are improper and constitute misconduct under Rule 8.4(d).

Inquiry #7:

Judge has instructed Lawyer A to send a proposed order to the court via email, with a copy to Lawyer B, by the end of the day. May Lawyer A submit the proposed order to the court as directed, with the copy to Lawyer B?

Opinion #7:

Yes. If the presiding judge has instructed counsel to communicate directly with the court, thereby providing notice to the opposing counsel/party about the anticipated communication, it is not a prohibited ex parte communication under Rule 3.5 and it is not prejudicial to the administration of justice under Rule 8.4(d). Additionally, pursuant to N.C. Gen. Stat. § 84-36, the Rules of Professional Conduct are not meant to disable or abridge “the inherent powers of the court to deal with its attorneys.” The presiding judge has the authority to determine how counsel are to communicate with the court; except as prohibited by law or court rule, such communications are within the discretion and preference of the tribunal and the presiding official.

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Proposed 2020 Formal Ethics Opinion 1
Responding to Negative Online Reviews
October 22, 2020

Proposed opinion rules that a lawyer is not permitted to include confidential information in a response to a client’s negative online review, but is not barred from responding in a professional and restrained manner.

Inquiry #1:

Lawyer’s former client posted a negative review of Lawyer’s representation on a consumer rating website. Lawyer does not have the ability to edit or remove reviews posted on the consumer rating website. Lawyer believes that the former client’s comments are false. Lawyer believes that certain information in Lawyer’s possession about the representation would rebut the negative allegations. The information in question constitutes confidential information as defined by Rule 1.6(a).

In what manner may Lawyer publicly respond to the former client’s negative online review?

Opinion #1:

In response to the former client’s negative online review, Lawyer may post a professional and restrained response that does not reveal any confidential information. Lawyer may deny the veracity of the review, but lawyer may not use confidential client information to contradict specific facts set out therein. Online reviews are written by current or past clients and posted publicly. Typically, reviews will include a comment from the client regarding the lawyer’s services as well as some type of “rating.” Once the review is posted, it is visible to the public. Online reviews are today’s personal recommendations. Many potential clients will read—and rely on—online reviews as the first step to finding a lawyer.

Because online reviews are so important to a lawyer’s practice, online reputation management is crucial. Therefore, it may be in the lawyer’s best interest to respond to a negative review. Nevertheless, the protection of client confidences is one of the most significant responsibilities imposed on a lawyer. Rule 1.6(a) of the Rules of Professional Conduct provides that a lawyer may not reveal information acquired during the professional relationship with a client unless (1) the client gives informed consent; (2) the disclosure is impliedly authorized; or (3) one of the exceptions set out in Rule 1.6(b) applies. Rule 1.6(a) applies to all information acquired during the representation. Under Rule 1.9(c), a lawyer is generally prohibited from using or revealing confidential information of a former client. Therefore, Lawyer may not reveal confidential information in response to the negative online review unless the former client consents or an exception set out in Rule 1.6(b) applies. See 2018 FEO 1 (lawyers are cautioned to avoid disclosing confidential client information when responding to a negative review).

No exception in Rule 1.6(b) allows Lawyer to reveal confidential information in response to a former client’s negative review. The only exception potentially applicable to the facts presented is the “self-defense exception” set out in Rule 1.6(b)(6). Rule 1.6(b)(6) recognizes three circumstances in which the self-defense exception to the lawyer’s general duty of non-disclosure may apply: (1) in a controversy between the lawyer and client; (2) when a criminal charge or civil claim has been asserted against the lawyer based upon conduct in which the client was involved; or (3) in any proceeding concerning the lawyer’s representation of the client. Comment [11] to Rule 1.6 provides guidance as to the application of the self-defense exception. Pursuant to comment [11]:

Where a legal claim or disciplinary charge alleges complicity of the lawyer in a client’s conduct or other misconduct of the lawyer involving representation of the client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. The same is true with respect to a claim involving the conduct or representation of a former client. Such a charge can arise in a civil, criminal, disciplinary or other proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person, for example, a person claiming to have been defrauded by the lawyer and client acting together. The lawyer’s right to respond arises when an assertion of such complicity has been made. Paragraph (b)(6) does not require the lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion. The right to defend also applies, of course, where a proceeding has been commenced.

Rule 1.6, cmt. [11] (emphasis added). Because online criticism, standing alone, does not constitute a “criminal charge,” “civil claim,” or “proceeding,” the remaining question is whether a negative online review creates a “controversy” between the lawyer and client as to which the lawyer may disclose otherwise protected client-related information in order “to establish a claim or defense.”

Several jurisdictions conclude that a negative online review does not amount to a controversy that triggers the self-defense exception. We agree with the analyses set out in these ethics opinions. For example, the Pennsylvania Bar Association concludes that while there are certain circumstances that would allow a lawyer to reveal confidential client information, a negative online client review is not a circumstance that invokes the self-defense exception. The committee states:

A disagreement as to the quality of a lawyer’s services might qualify as a “controversy.” However, such a broad interpretation is problematic for two reasons. First, it would mean that any time a lawyer and a client disagree about the quality of the representation, the lawyer may publicly divulge confidential information. Second, [comment [11]] makes clear that a lawyer’s disclosure of confidential information to “establish a claim or defense” only arises in the context of a civil, criminal, disciplinary or other proceeding.

Penn. Bar Ass’n Ethics Comm. Op. 2014-200. Likewise, the New York State Bar Association opines that, “the mere fact that a former client has posted critical commentary on a website is insufficient to permit a lawyer to respond to the commentary with disclosure of the former client’s confidential information....Unflattering but less formal comments on the skills of lawyers, whether in hallway chatter, a newspaper account, or a website are an inevitable incident of the practice of a public profession.” New York State Bar Ass’n Comm. on Prof’l Ethics Op. 1032 (2014). The Professional Ethics Committee for the State Bar of Texas opines that the self-defense exception “cannot reasonably be interpreted to allow public disclosure of a former client’s confidences just because a former client has chosen to make negative comments about the lawyer on the internet.” Texas Center for Legal Ethics Op. 662 (2016). Similarly, the Nassau County Bar Association states that the exception does not apply to “informal complaints such as posting criticisms on the Internet.” Bar Ass’n of Nassau County Comm. on Prof’l Ethics Op. 2016-1. The Restatement of the Law Governing Lawyers similarly states that the self-defense exception to the duty of confidentiality is limited to “charges that imminently threaten the lawyer or the lawyer’s associate or agent with serious consequences, including criminal charges, claims of legal malpractice, and other civil actions such as suits to recover overpayment of fees, complaints in disciplinary proceedings, and the threat of disqualification[.]”1 Restatement (Third) of the Law Governing Lawyers § 64, cmt. c. (Am. Law Inst. 2000).

We note that comment [11] to Rule 1.6 provides that a lawyer does not have to “await the commencement” of an action or proceeding to rely on the self-defense exception. Nonetheless, we agree with the Pennsylvania Bar Association that there must be an action or proceeding in contemplation for the exception to apply. See Penn. Bar Ass’n Ethics Comm. Op. 2014-200. The Restatement explains that, in the absence of the filing of a charge, there must be “the manifestation of intent to initiate such proceedings by persons in an apparent position to do so, such as a prosecutor or aggrieved potential litigant.” The Restatement (Third) of the Law Governing Lawyers § 64. As noted in the Restatement:

Use or disclosure of confidential client information...is warranted only if and to the extent that the disclosing lawyer reasonably believes necessary. The concept of necessity precludes disclosure in responding to casual charges, such as comments not likely to be taken seriously by others. The disclosure is warranted only when it constitutes a proportionate and restrained response to the charges. The lawyer must believe that options short of use or disclosure have been exhausted or will be unavailing or that invoking them would substantially prejudice the lawyer’s position in the controversy.

Id. It is the “manifestation of intent” that makes the disclosure of confidential client information “reasonably necessary” under Rule 1.6(b)(6). The online posting of negative comments about a lawyer does not amount to the requisite “manifestation of intent” to initiate proceedings against the lawyer that would permit the lawyer to rely on the self-defense exception.

While Lawyer is not permitted to reveal confidential information in a response to the negative review, Lawyer is not barred from responding in a professional and restrained manner. For example, the Bar Association of San Francisco opines that if the client’s matter has ended, a simple response that denies the veracity or merit of the former client’s assertions would not violate the duty of loyalty that lawyers owe to former clients. San Francisco Bar Ass’n Op. 2014-1. See also Los Angeles County Ethics Op. 525 (2012) (lawyer may make a “proportionate and restrained” response to his former client’s negative review, but may not reveal confidential information or damage the former client in relation to the representation); Texas State Bar Opinion 662 (2016) (lawyer may post a proportional and restrained response that does not reveal any confidential information or otherwise violate the rules of ethics). The Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility proposes the following generic response to a negative online review:

A lawyer’s duty to keep client confidences has few exceptions and in an abundance of caution I do not feel at liberty to respond in a point-by-point fashion in this forum. Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events.

Penn. Bar Ass’n Ethics Comm. Op. 2014-200. Accordingly, Lawyer may respond to the former client’s review by denying the veracity of the review, but lawyer may not use confidential client information to contradict specific facts set out in the review. We conclude that the following response complies with the Rules of Professional Conduct:

A lawyer has a professional responsibility to keep client confidences. This duty has very few exceptions. Even when false statements are made about a lawyer, the lawyer is often required to maintain the client’s confidences.

As a result, I do not feel at liberty to respond to this review in a point-by-point fashion. Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events. Clients and former clients are permitted to release lawyers from their confidentiality obligations, and if that were done, I would be able to respond more fully.

Inquiry #2:

An individual who is not a current or former client, and has never consulted with Lawyer with respect to a particular matter, posts a negative review of Lawyer’s legal services on a consumer rating website. May Lawyer respond to the post by stating that he has never represented the individual?

Opinion #2:

Yes. The duty of confidentiality set out in Rule 1.6 only applies to information obtained during a lawyer-client relationship.

Inquiry #3:

A potential client contacts lawyer for representation. Lawyer declines the representation—perhaps because he does not practice in the relevant area of law, he has a conflict, or he does not believe the case has merit. The potential client posts a negative review of Lawyer on a consumer rating website. May Lawyer respond to the post by stating that he has never represented the individual?

Opinion #3:

No. Pursuant to Rule 1.18(a), a person who consults with a lawyer with respect to a particular matter is a prospective client. Prospective clients are entitled to some of the protections afforded clients. Rule 1.18, cmt. [1]. Specifically, Rule 1.18(b) prohibits a lawyer from using or revealing information obtained during a consultation with a prospective client—except as permitted by Rule 1.9—even if the lawyer decides not to proceed with the representation. Notably, the duty exists regardless of how brief the initial conference may be. Rule 1.18, cmt. [3].

Lawyer may not confirm or deny his representation of the prospective client. Lawyer may, however, state that it is not possible for him to accept every prospective client’s case. Lawyer may enumerate the various reasons that a prospective client’s case may be declined.

Inquiry #4:

A relative or a friend of a former client posts a negative review of Lawyer’s representation of the former client on a consumer rating website.

Lawyer believes that the comments are false. Lawyer believes that certain information in Lawyer’s possession about the representation would rebut the negative allegations. The information in question constitutes confidential information as defined by Rule 1.6(a).

In what manner may Lawyer publicly respond to the comments?

Opinion #4:

Lawyer may respond that he never represented the relative or friend. See Inquiry #2. In addition, Lawyer may post a professional and restrained response to the negative review, but may not disclose confidential client information obtained during the representation of the former client, unless the former client consents. See Inquiry #1.

Inquiry #5:

Lawyer’s former client posted a negative review of Lawyer’s representation on a consumer rating website. Lawyer believes that the former client’s comments are false and libelous. May Lawyer sue his former client for defamation?

Opinion #5:

Yes. If there is a basis in law and fact for a defamation suit against the former client, the Rules of Professional Conduct do not prohibit Lawyer from filing such a suit.

Inquiry #6:

May Lawyer include the following provision in his representation agreement?

A lawyer is generally prohibited from using or revealing confidential information of a former client. Client agrees that confidential information may nonetheless be revealed by Lawyer in the event Client publishes or causes the publication of a claim on the internet that Client’s representation by Lawyer was deficient in some respect, but only to the extent reasonably necessary to directly rebut such a claim.

Opinion #6:

No. Rule 1.6(a) provides that a lawyer may not reveal information acquired during the professional relationship with a client unless (1) the client gives informed consent; (2) the disclosure is impliedly authorized; or (3) one of the exceptions set out in Rule 1.6(b) applies. Pursuant to Rule 1.0(f), “informed consent” denotes the agreement by the client to a proposed course of conduct “after the lawyer has communicated adequate information and explanation appropriate to the circumstances.” The proposed representation agreement provision does not provide adequate information and explanation such that the client could give informed consent to the prospective disclosure of confidential client information in the hypothetical circumstance set out in the proposed provision.

Endnote 

1. While the California Rules of Professional Conduct do not contain a “self-defense’ exception to the duty of confidentiality, the California Evidence Code contains a self-defense exception to the attorney-client privilege. Cal. Code Evid. § 958 (no privilege as to a communication relevant to an issue of breach by lawyer of duty arising out of lawyer-client relationship.) Two ethics opinions from local California bar associations interpreting the exception conclude that a lawyer may not rely on the exception to disclose confidential information in response to a negative online review. San Francisco Bar Ass’n Legal Ethics Comm. Op. 2014-1; Los Angeles County Op. 525 (2012).

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Proposed 2020 Formal Ethics Opinion 2
Advancing Client Portion of Settlement
October 22, 2020

Proposed opinion rules that a lawyer may not advance a client’s portion of settlement proceeds while a matter is pending or litigation is contemplated, but may advance a client’s portion of settlement proceeds under other circumstance if the lawyer complies with Rule 1.8(a).

Inquiry #1:

Lawyer represents Client in a civil dispute. On behalf of Client, Lawyer filed a civil lawsuit against the defendant claiming damages. Prior to trial, Lawyer settles Client’s matter with the defendant. Client has executed the necessary release to resolve the claim, and Lawyer has received a check from the defendant representing the settlement proceeds. The check is not one that would permit disbursement on provisional credit pursuant to the Good Funds Settlement Act. Prior to the settlement proceeds check clearing Lawyer’s trust account, Client informs Lawyer about a significant and pressing financial need and asks Lawyer to advance to him his share of the settlement proceeds. Lawyer will make the advancement to Client out of Lawyer’s personal or operating account. Lawyer will reimburse himself by deducting the amount advanced to Client from the settlement proceeds once defendant’s check clears Lawyer’s trust account.

May Lawyer advance settlement proceeds to Client?

Opinion #1:

No. Rule 1.8(e)(1) prohibits a lawyer from providing financial assistance to a client in connection with pending or contemplated litigation, except that the lawyer may advance court costs and expenses of litigation.

The term “pending” is not defined in the terminology section of the Rules of Professional Conduct. However, citing a 1941 case, the North Carolina Court of Appeals opined that, “an action is deemed to be pending from the time it is commenced until its final determination[.]” Brannock v. Brannock, 135 N.C. App. 635, 523 S.E.2d 110 (1999) (internal citations omitted). See also Black’s Law Dictionary 1021 (5th ed. 1979) (“an action or suit is ‘pending’ from its inception until the rendition of final judgment”).

Until the release is signed, the settlement funds are paid to Lawyer or Client, and an order dismissing the lawsuit is filed with the court, the matter is pending, and Lawyer cannot advance settlement proceeds to Client.

Inquiry #2:

Lawyer represents Client in a civil dispute. Lawyer settles Client’s matter with the defendant prior to filing a lawsuit against the defendant. Client has executed the necessary release to resolve the claim, and Lawyer has received a check from the defendant representing the settlement proceeds. The check is not one that would permit disbursement on provisional credit pursuant to the Good Funds Settlement Act. Prior to the settlement proceeds check clearing Lawyer’s trust account, Client informs Lawyer about a significant and pressing financial need and asks Lawyer to advance to him his share of the settlement proceeds. Lawyer will make the advancement to Client out of Lawyer’s personal or operating account. Lawyer will reimburse himself by deducting the amount advanced to Client from the settlement proceeds once defendant’s check clears Lawyer’s trust account.

May Lawyer advance settlement proceeds to Client?

Opinion #2:

Yes, provided Lawyer satisfies himself that the potential litigation against the defendant is no longer contemplated and Lawyer complies with Rule 1.8(a) as set out in Opinion #3 below. Rule 1.8(e)(1) prohibits a lawyer from providing financial assistance to a client in connection with pending or contemplated litigation, except that the lawyer may advance court costs and expenses of litigation. The scenario in this inquiry differs from that in Inquiry #1 in that the litigation is not pending (see Opinion #1) and litigation is no longer contemplated under Rule 1.8(e). Merriam-Webster Dictionary defines “contemplate” as, “To view or consider with continued attention; meditate on; to view as likely or probable or as an end or intention.” Contemplate, Merriam-Webster Dictionary, merriam-webster.com/dictionary/contemplate. With the release signed, the parties have effectively resolved their dispute, and the litigation is reasonably presumed to be both concluded and no longer contemplated for purposes of Rule 1.8(e).

However, although execution of a settlement agreement and/or releases related to the action express the parties’ collective desire to resolve the matter and serve as a significant step in carrying out that desire, the parties may continue to contemplate the continued pursuit of litigation to resolve the dispute until the actual exchange of consideration between the parties occurs and is final. For example, checks representing settlement funds can be dishonored, and clients who previously signed a release can withdraw their agreement with the resolution. Therefore, whether a matter is no longer contemplated under Rule 1.8(e) must be determined individually by the lawyer based upon the circumstances. Considerations for making this determination can include the financial stability and reliability of the defendant, the legitimacy of the check or instrument conveying the settlement funds, the lawyer’s prior dealings with the defendant, and the client’s certainty and satisfaction with the resolution. It is incumbent upon the lawyer to reasonably determine whether litigation remains or should remain contemplated. If a lawyer reasonably concludes that litigation remains contemplated despite steps taken to act upon a settlement agreement, the lawyer is prohibited from providing the advancement pursuant to Rule 1.8(e).

Inquiry #3:

Lawyer represents Client in a civil dispute. Lawyer settles Client’s matter with the defendant, and the litigation is no longer pending and/or no longer contemplated per Rule 1.8(e). Client has executed the necessary release to resolve the dispute, and Lawyer has received a check from the defendant representing the settlement proceeds. The check is not one that would permit disbursement on provisional credit pursuant to the Good Funds Settlement Act. Prior to the settlement proceeds check clearing Lawyer’s trust account, Client informs Lawyer about a significant and pressing financial need and asks Lawyer to advance to him his share of the settlement proceeds. Lawyer will make the advancement to Client out of Lawyer’s personal or operating account. Lawyer will reimburse himself by deducting the amount advanced to Client from the settlement proceeds once defendant’s check clears Lawyer’s trust account.

May Lawyer advance settlement proceeds to Client under these circumstances?

Opinion #3:

Yes, if the lawyer complies with Rule 1.8(a). Presuming the lawyer concludes that the litigation is no longer pending nor contemplated, a lawyer may advance the client’s portion of settlement proceeds to the client without violating Rule 1.8(e). However, the advancement provided by the lawyer to his client is a business transaction made with the client subject to Rule 1.8(a). Rule 1.8(a) prohibits a lawyer from entering into a business transaction with a client unless the following provisions are met:

(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;

(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and

(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.

Rule 1.8(a)(1)-(3). In considering what terms are “fair and reasonable” to a client in this scenario, the Ethics Committee considered the purpose for the advancement and the need to protect clients from potential disputes with their lawyer as a result of this advancement. Accordingly, any advancement of settlement proceeds made by a lawyer to his client in this scenario must contain at least the following “fair and reasonable” terms:

1. Lawyer will not attempt to recover from Client any funds provided to Client as part of this advancement should the instrument conveying settlement proceeds be dishonored;

2. Lawyer will not initiate or threaten to initiate legal action to recover from Client any funds provided to Client as part of this advancement should Lawyer’s calculation of funds result in an over-disbursement to Client;

3. Lawyer will provide to Client any and all remaining settlement funds not previously provided to Client via the advancement; and

4. Lawyer will not charge Client any interest on the advancement made and will not charge an administrative fee associated with the advancement to Client.

If Lawyer complies with the entirety of Rule 1.8(a), including inclusion of the above terms into the signed agreement with Client, Lawyer may provide Client’s portion of settlement proceeds to Client as described in the inquiry.

Lastly, the Ethics Committee notes that, in making the eventual reimbursement to Lawyer from Client’s settlement proceeds once the instrument conveying the funds clears Lawyer’s trust account, Lawyer must keep detailed records of the transaction to justify the reimbursement. As a result of the advancement, Lawyer’s trust account will reflect disbursements made to himself/his practice, and no disbursements made to Client in the settlement. Every disbursement from a trust account must be accounted for and justified by client directive. See Rule 1.15-2. Accordingly, if Lawyer advances Client’s portion of settlement proceeds as described in this inquiry, Lawyer must retain all records necessary to support the disbursements made, including but not limited to copies of bank records for the advancement and Client’s executed agreement consenting to the transaction pursuant to Rule 1.8(a).

Inquiry #4:

May Lawyer advertise to the public or otherwise inform potential clients that Lawyer may consider advancing Client’s portion of any settlement proceeds prior to the settlement proceeds check clearing his trust account?

Opinion #4:

No. Rule 7.1(a) prohibits a lawyer from making false or misleading communications about the lawyer or lawyer’s services. Rule 7.1(a)(2) states that a communication is false or misleading if the communication “is likely to create an unjustified expectation about results the lawyer can achieve[.]” As noted in Opinion #2, a lawyer must individually and thoroughly evaluate his client’s case and circumstances as well as the lawyer’s own circumstances to determine whether advancing settlement proceeds prior to the actual receipt of proceeds is appropriate and something the lawyer is willing to do. Each case and each client is different, and circumstances surrounding the case, the client, and the lawyer have the potential to change during the course of the representation. Therefore, a lawyer cannot communicate with requisite certainty his willingness to offer an advancement of the client’s settlement proceeds prior to actually receiving the proceeds at the outset of litigation. Making such a communication creates an unjustified expectation about the lawyer’s service and the results the client can expect through the lawyer’s services in violation of Rule 7.1(a). Accordingly, because of the potential for unjustified expectations in violation of Rule 7.1(a), the possibility of advancement may not be used as an inducement by the lawyer to obtain employment, and the possibility of advancement may not be advertised or publicized by the lawyer.

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Proposed 2020 Formal Ethics Opinion 5
A Lawyer’s Responsibility in Avoiding Fraudulent Attempts to Obtain Entrusted Client Funds
October 22, 2020

Proposed opinion discusses a lawyer’s professional responsibility to inform clients about relevant, potential fraudulent attempts to improperly acquire client funds during a real property transaction.

Facts:

Buyer in a real estate transaction retained Lawyer as settlement agent. At the outset of the representation, Lawyer sent Buyer an informational letter including instructions for wiring closing proceeds to Lawyer’s trust account. Lawyer’s letter includes a warning about potential wire fraud associated with the transaction, and that in order to prevent wire fraud Buyer should telephone Lawyer’s office using the number listed in the letterhead before initiating the wire to verify the wiring instructions. The letter also states that Lawyer will not change wire instructions via email.

On the date of the scheduled real estate closing, Buyer telephoned Lawyer’s office and left a voicemail inquiring about wiring instructions for sending closing proceeds to Lawyer’s trust account. Minutes later, Buyer received an email message purporting to be from Lawyer indicating that Buyer should ignore Lawyer’s previous wire instructions and instead should utilize new wire instructions that were attached to the email. This email was not sent by Lawyer or by anyone acting under Lawyer’s direction. The email did not have an attachment, so Buyer replied to the email noting the lack of an attachment. In response, Buyer unknowingly received fraudulent wiring instructions and initiated the wire transfer of the closing proceeds to what he thought was the Lawyer’s trust account but was actually to a third party’s fraudulent account. When Buyer appeared at closing and inquired about Lawyer’s receipt of the closing proceeds, Lawyer discovered that the funds had never been received into his trust account.

Inquiry #1:

Did Lawyer violate the Rules of Professional Conduct by failing to prevent the fraudulent wire transfer of Buyer’s proceeds?

Opinion #1:

No. Lawyer’s letter to Buyer at the outset of the representation containing a warning about the potential for wire fraud and instructions to the client to personally confirm wire transfer instructions via telephone to Lawyer’s office reasonably minimize the risks associated with the transfer of funds during a real property transaction.

Lawyers have a duty to competently represent clients and to communicate with clients concerning the representation. Rules 1.1 and 1.4. A lawyer’s duty of competency requires the lawyer to have the necessary “legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” Comment 8 to Rule 1.1 further states,

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with the technology relevant to the lawyer’s practice, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject.

In addition to accepting and pursuing a client’s matter with the requisite competence, a lawyer must adequately communicate with the client about “the means by which the client’s objectives are to be accomplished” and to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Rules 1.4(a)(2) and 1.4(b); see also Rule 1.4 [cmt. 5] (“The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so.”).

Safeguarding entrusted client property is one of the most important aspects of a lawyer’s practice. In addition to complying with the requisite safeguards set out in Rule 1.15 in handling entrusted property, a lawyer must also make efforts to educate him or herself on the potential risks associated with the transfer of funds, including the risks to client funds that exist prior to a lawyer’s possession of the funds, and ensure that those involved in a particular transaction are aware of such risks. See Rules 1.1, 1.4, and 5.3; see also 2015 FEO 6. Unfortunately, scams and other attempts to divert and fraudulently acquire client funds associated with a real property transaction are ever-present, increasing, and evolving. Furthermore, these scams have been widely reported on by various outlets, including the State Bar and the news media. See generally North Carolina State Bar, Alert: Compromised Email/Wire Instructions Fraud Continues to Target North Carolina Lawyers (May 23, 2017), ncbar.gov/news-publications/news-notices/2017/05/alert-compromised-emailwire-instructions-fraud-continues-to-target-north-carolina-lawyers/; Caroline Biggs, How To Protect Yourself From Real Estate Scams, N.Y. Times (Jan. 3, 2020), nytimes.com/2020/01/03/realestate/how-to-protect-yourself-from-real-estate-scams.html. Given the constant threat to client funds and the significant harm that can result from such fraudulent activity, a lawyer’s duty in representing clients in real property transactions necessarily requires the lawyer to be vigilant in reasonably educating him or herself on the current state of such fraudulent attempts and in communicating with clients and staff about such risks.

In 2015 FEO 6, the Ethics Committee addressed a lawyer’s professional responsibility to safeguard entrusted funds from third party interference, including theft. There, the committee determined that a lawyer who has taken reasonable care to minimize the risks to client funds by implementing reasonable security measures in compliance with the requirements of Rule 1.15 is not ethically obligated to replace funds that are stolen from the lawyer’s trust account. The committee also cited a prior ethics opinion in explaining a lawyer’s continuing obligation to educate him or herself about the relevant and evolving risks associated with the lawyer’s practice and handling of entrusted client funds (“In 2011 FEO 7 the Ethics Committee opined that a lawyer has affirmative duties to educate himself regularly as to the security risks of online banking;...and to ensure that all staff members who assist with the management of the trust account receive training on and abide by the security measures adopted by the firm.”).

In the present inquiry, Lawyer has not yet received entrusted property from Buyer, and thus Rule 1.15 is not yet implicated. However, Lawyer has a duty to competently represent Buyer in the real estate transaction and to “keep abreast of changes in the law and its practice, including the benefits and risks associated with the technology relevant to the lawyer’s practice[.]” Rule 1.1 [cmt. 8]. Lawyer also has a duty to adequately and effectively inform Buyer about the potential risks associated with the transfer of funds in connection with a real property transaction so that Buyer can make “informed decisions regarding the representation.” Rule 1.4(b). Similar to the situation addressed in 2015 FEO 6, a lawyer satisfies his or her professional obligation if s/he takes reasonable measures to educate him or herself on real property transaction scams; implements within the lawyer’s practice (including staff) reasonable measures to minimize the risks to client funds in accordance with the Rules of Professional Conduct; and adequately communicates to the client the risks associated with the transfer of funds in connection with a real property transaction and clear instructions on how to safely transfer funds to complete the real property transaction. Accordingly, Lawyer has fulfilled his professional responsibility with regards to Buyer and the underlying real property transaction.

Inquiry #2:

Same scenario as Inquiry #1, but Lawyer failed to send the letter at the outset of the representation containing the warning about wire fraud and the instructions for verifying wire transfer instructions at closing. Lawyer did not otherwise provide any warning to Buyer about potential wire fraud, Lawyer did not provide instructions specifically described to avoid wire fraud, and Lawyer has not made any effort to educate himself or his staff about the potential for wire fraud in connection with real property transactions conducted by Lawyer’s law office.

Does Lawyer’s failure to provide any warning to Buyer or otherwise take steps to avoid potential wire fraud violate the Rules of Professional Conduct?

Opinion #2:

Yes. As noted above, scams and other attempts to divert and fraudulently acquire client funds associated with a real property transaction are ever-present, increasing, and evolving. A lawyer serving as a settlement agent for real property transactions has a duty to implement reasonable measures to minimize the risks associated with the transfer of funds in real property transactions, including to be aware of and educated on these developments, and to communicate with his client about these risks and how the lawyer intends to avoid them. See Opinion #1.

Inquiry #3:

Same scenario as Inquiry #1, but instead of Lawyer sending a letter to Buyer at the outset of the representation containing the warning and instructions regarding wire fraud, Lawyer includes the warning and instructions as generic language at the end of all of Lawyer’s sent emails. Does this effort satisfy Lawyer’s obligation to communicate with Buyer about the risks associated with wire fraud in real property transactions?

Opinion #3:

Yes, provided Lawyer specifically alerted Buyer to the language contained in the email and directed Buyer to read the language in its entirety. The medium by which this language is communicated to Buyer is not as material as Lawyer’s clear communication of the information to Buyer. If Lawyer directs Buyer’s attention to the warning and instructions contained in an email, Lawyer has satisfied his obligation to adequately communicate with Buyer to enable Buyer to make informed decisions about the representation. Rule 1.4(b). Lawyer does not satisfy his professional responsibility by simply including the language at the end of an email without any direction to Buyer to read the language, as such language can often go overlooked and unread by the email recipient.

Similar to 2011 FEO 7’s discussion of a lawyer’s professional responsibility in using online banking, this opinion does not set forth specific requirements beyond those of education and adequate communication needed to minimize the risks associated with wire fraud. As noted in 2011 FEO 7, imposing specific requirements can “create a false sense of security in an environment where the risks are continually changing. Instead, due diligence and frequent and regular education are required.”

Inquiry #4:

Same scenario as Inquiry #1, but prior to Lawyer providing any instruction or information to Buyer, Lawyer learns that Buyer received documentation from a third party (e.g. Buyer’s realtor or Buyer’s lending institution) warning Buyer about the dangers associated with wire fraud in residential real property transactions. Must Lawyer still warn Buyer about the dangers associated with wire fraud, or may Lawyer rely upon the third party’s warning/information previously provided to Buyer?

Opinion #4:

Yes. Lawyer’s knowledge that a third party provided similar warnings to Buyer does not absolve Lawyer of his professional responsibility to competently represent Buyer and communicate any relevant concerns about the transaction.

Inquiry #5:

Does Lawyer have a duty to report the theft of Buyer’s funds intended for Lawyer’s trust account to the State Bar’s Trust Account Compliance Counsel?

Opinion #5:

No. Rule 1.15-2(p) states that, “[a] lawyer who discovers or reasonably believes that entrusted property has been misappropriated or misapplied shall promptly inform the Trust Account Compliance Counsel (TACC) in the North Carolina State Bar Office of Counsel.” Rule 1.15-1(f) defines “entrusted property” as “trust funds, fiduciary funds, and other property belonging to someone other than the lawyer which is in the lawyer’s possession or control in connection with the performance of legal services or professional fiduciary services.” At the time of the theft, Buyer’s funds were neither in Lawyer’s possession nor in Lawyer’s control, and thus are not entrusted funds subject to the reporting requirement in Rule 1.15-2(p). However, lawyers are encouraged to report such fraudulent attempts on client funds—successful or unsuccessful—to the State Bar to make the State Bar aware of such attempts and empower the State Bar to issue appropriate alerts and/or guidance to help lawyers and clients avoid future fraudulent efforts.

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Proposed 2020 Formal Ethics Opinion 6
Commenting Publicly on Client Information Contained in Public Records
October 22, 2020

Proposed opinion rules that a lawyer is prohibited from commenting publicly about information acquired during representation unless the client consents or the disclosure is permitted by Rule 1.6(b).

Lawyer served as trial counsel for Client in a criminal matter that garnered a lot of publicity. The matter was ultimately decided by the Supreme Court of North Carolina. After the publication of the Supreme Court opinion, Lawyer was asked to discuss the case through a variety of public appearances, including continuing legal education seminars and podcasts. Lawyer would like to accommodate these requests and discuss the case publicly; Lawyer would limit his comments to the information and events contained in the public record or occurring in public hearings, and Lawyer would not be paid for these appearances. Although Lawyer did not think it was necessary to ask Client for consent to speak about the case, Lawyer felt the better practice was to inform Client and seek Client’s consent. However, after Lawyer explained the request to Client, including that Lawyer would only be discussing information that was a matter of public record, Client refused to consent to Lawyer’s request and asked Lawyer not to speak about his case at these public appearances. Despite Client’s response, Lawyer still desires to speak publicly about the public aspects of Client’s case.

Inquiry #1:

May Lawyer ignore Client’s request and speak publicly about Client’s case if Lawyer will only discuss information that is a matter of public record?

Opinion #1:

No. The protection of client information is one of the most significant responsibilities imposed on a lawyer. Accordingly, lawyers who discuss client matters in public forums must comply with the Rules of Professional Conduct, including Rule 1.6. Rule 1.6(a) provides that a lawyer shall not reveal information acquired during a professional relationship with a client unless (1) the client gives informed consent; (2) the disclosure is impliedly authorized; or (3) one of the exceptions set out in Rule 1.6(b) applies. Notably, Rule 1.6(a) does not refer to “confidential information.” Rather, the rule protects any information relating to the representation of a client acquired during the representation. Rule 1.6(a) grants primary authority to the client to control the dissemination of information acquired during the professional relationship with his or her lawyer—including publicly available information—because the information acquired by a lawyer concerning that representation is the client’s information, not the lawyer’s information. Furthermore, this duty to keep confidential “any information acquired during the professional relationship with a client” or information “relating to the representation of a client” extends beyond the conclusion of the representation. See Rules 1.6(a), 1.6(c), 1.9(c)(2). Information in public records that relates to the representation of a current client is “information related to the representation of a client” that is covered by the Rules. There is no exception for disclosing information in public records or those public records themselves.

Therefore, without express or implied client consent, Lawyer is prohibited from commenting publicly about any information acquired during the professional relationship or related to the client’s representation. This prohibition applies to information contained in court orders as well as information provided in public judicial proceedings. See ABA Formal Op. 480 (2018); Colo. Formal Op. 130 (2017) (without informed consent, lawyer may not disclose information relating to representation of a client even if the information has been in the news). See also In re Anonymous, 932 N.E.2d 671 (Ind. 2010) (neither client’s prior disclosure of information relating to her divorce representation to friends nor availability of information in police reports and other public records absolved lawyer of violation of Rule 1.6); State Bar of Nev. Op. 41 (2009) (all information relating to representation is protected by Rule 1.6 even if the information is public or already generally known); Iowa S. Ct. Attorney Disciplinary Bd. v. Marazen, 779 N.W.2d 757 (Iowa 2010) (rule of confidentiality breached when an attorney discloses information learned through the attorney-client relationship even if that information is otherwise publicly available); Lawyer Disciplinary Bd. v. McGraw, 461 S.E.2d 850 (W. Va. 1995) (ethical duty of confidentiality is not nullified by the fact that information is part of public record). But see Hunter v. Va. State Bar, 744 S.E.2d 611 (Va. 2013) (rejecting State Bar’s conclusion that Rule 1.6 prohibited lawyer from posting information revealed in public criminal trials of his client as unconstitutional infringement on lawyer’s free speech rights).

Inquiry #2:

If the answer to Inquiry #1 is “no,” would the answer be different if Lawyer did not ask his client for consent?

Opinion #2:

No. A lawyer must keep confidential information acquired during the course of the representation or relating to the representation regardless of whether the client affirmatively requests lawyer to do so. Rule 1.6.

Inquiry #3:

May Lawyer discuss the client’s matter in the form of a hypothetical?

Opinion #3:

Lawyer may discuss the client’s matter in the form of a hypothetical if Lawyer can make the discussion so generic that the identity of the client and the client’s specific matter cannot be ascertained. See Rule 1.6, cmt. [4]. In the case of high-profile litigation, it is unlikely that a lawyer will be able to meet this standard. 

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