I bet any practicing lawyer is familiar with peer-to-peer listservs. They’re everywhere. Each section of the Maryland State Bar Association has its own listserv. They are some of the most sought-after benefits of organizations such as the Maryland Criminal Defense Attorney’s Association and the American Immigration Lawyers Association.
Apart from the often misinterpreted sarcastic remarks and sometimes heated debates veering off topic, listservs are powerful tools to reach outside of your sphere of colleagues to hundreds, and sometimes thousands, of other attorneys. Yet listserv participation raises certain ethical concerns.
A recent ethics committee opinion addressed whether listservs violate a lawyer’s duty of confidentiality and whether there is an ethical duty to report a post that exposes another lawyer’s misconduct under the Maryland Lawyer’s Rules of Professional Conduct. Maryland State Bar Association, Ethics Docket No. 2015-03 (2015).
Does a hypothetical posted to a listserv violate an attorney’s duty of confidentiality?
When drafting a question to post on a listserv, there’s always a balance between providing enough information to get helpful answers and insight without exposing too many details. The risk is that very detailed or especially unique hypotheticals may reveal your client’s identity.
MLRPC 1.6 states: “A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).”
The committee’s conclusion is that hypotheticals are permissible as long as there’s no likelihood that a third party could discover who your client is. You may, however, have to obtain informed consent from your client before you post if there is a risk that the information you disclose may reveal the identity of your client.
David S. Goldberg is a Maryland family law attorney and mediator who founded and moderates DSGfamily, a family law listserv with over 1,200 members.
“I have read every one of the 33,000 plus messages posted to the DSGfamily listserv since August 2011,” he says. “Not once [have] I been able to identify the client who was the subject of inquiry.”
Still, the committee warns that you should assume opposing counsel is viewing all postings. Keep in mind that someone may discover the identity of your client by cross referencing information such as your name, the judge’s name, and the court location on the Maryland Judiciary Case Search.
Do members of a listserv have a duty to report the author of a post if they believe the author has violated the rules of professional conduct?
MLRPC 8.3(a): “[a] lawyer who knows that another lawyer has committed a violation of the Maryland Lawyer’s Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.”
Sometimes, a post on a listserv will pose such an elementary query that it raises the question of whether the posting attorney should be handling that type of case at all. I’ve seen these posts prompt a host of replies. Some replies criticize the posting attorney for taking on a case where they lack experience and knowledge of the law. Other replies defend the posting attorney for the courage to seek help.
Could you be reported for misconduct by posting on a listserv?
It’s a controversial question.
Ethical misconduct could take the form of breaching client confidentiality or failing to provide competent representation. The committee lists a number of factors a lawyer should weigh in deciding whether there exists a duty to report another’s misconduct, including the seriousness of the violation and whether the lawyer actually knows that a violation has been committed. It further notes that there is no duty to investigate unless the other attorney is within the same firm.
“I never felt the need to contact Bar Counsel to report any member of the listserv for misconduct,” Goldberg says. “Our colleagues are more likely to get in trouble [if] they don’t ask for help on the listserv.
“We have plenty of members who are young and inexperienced and need patient guidance and mentoring,” Goldberg adds. ” Time, experience, and the use of this listserv will help to cure their deficiencies and make them better lawyers. That’s the whole purpose for its existence.”
What do you think?