Texas lawyers and social media

  • United States
  • 09/18/2018
  • Northon Rose Fulbright

Texas lawyers are permitted to ask their lawyer friends on social media for help with legal questions on behalf of their clients, according to a recent opinion from the State Bar of Texas’ Professional Ethics Committee (“PEC”). The PEC is a committee appointed by the Texas Supreme Court that issues opinions on various ethics and professional responsibility questions posed by members of the State Bar of Texas.

Opinion No. 673, issued in August, addressed two questions: 1) Does a lawyer violate the Texas Disciplinary Rules of Professional Conduct by seeking advice on behalf of a client from other lawyers in an online discussion group? 2) What if the lawyer asks another lawyer at a different firm in an informal consultation or discussion? According to the PEC, the answer to both is that the conduct does not violate the rules, subject to a few limitations and exceptions.

Typically, Rule 1.05 of the Texas Disciplinary Rules prohibits a lawyer from knowingly revealing confidential information of a client unless otherwise permitted or required by the rules. Confidential information, as defined under Rule 1.05(a), includes both information protected by the attorney-client privilege as well as “all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.”

As written, this rule would limit lawyers to asking other lawyers only very general questions about statutes or case law or rules. Providing some facts about the case in the set-up of the question, even if presented in a hypothetical fashion, would very likely reveal confidential information learned in the course of the representation.

The Panel notes, however, that Rule 1.05 has several exceptions to the duty of confidentiality, two of which say that a lawyer may reveal unprivileged confidential information “[w]hen impliedly authorized to do so in order to carry out the representation” and when the lawyer has reason to believe it is necessary to do so in order to “carry out the representation effectively.”

According to the PEC, it is these exceptions that allow lawyers to reveal a “limited amount of unprivileged confidential information” to lawyers outside of their law firm, as long as the lawyer reasonably believes doing so will further the representation for the benefit of the client and it is not reasonably foreseeable that doing so would prejudice the client.

The PEC cautions that the asking lawyer should only reveal the information necessary to obtain an answer and should frame the question in a hypothetical that does not identify the client or provide information that could give away the client’s identity. Care should also be taken to avoid causing any harm, prejudice, or embarrassment to the client. Furthermore, revealing privileged confidential information always requires client consent, and the exceptions do not apply if the client has directly instructed the lawyer not to reveal confidential information.

Despite these exceptions, the opinion should bring some additional resources and flexibility to Texas lawyers who would like to consult with law school friends, former colleagues, or legal discussion boards and social media groups for quick questions without engaging in the hassle of a co-representation. The lawyers responding, however, should also be careful not to reveal any confidential information obtained from their own client representations in the answer.