A recent ethics opinion from the ABA Standing Committee on Ethics and Professional Responsibility, Formal Opinion 496, examines the options available to lawyers when confronted with what Opinion 496 describes as the “regular” occurrence of the phenomenon that “[c]lients, opposing parties, and others are increasingly taking to the Internet to express their opinions of lawyers they have encountered.” In this article we will discuss the principal conclusions in the Opinion, and the lessons it, and NYSBA Formal Opinion 1032 (2014) on the same topic, holds for New York lawyers.

Opinion 496 begins by recognizing that the fundamental issue raised by these situations is the duty to preserve client confidentiality. The Opinion then sets out the relevant section of the ABA Model Rule of Professional Conduct (MRPC) 1.6 on the Duty of Confidentiality, with particular reference to the so-called “self-defense” exception under MR 1.6(b). Since this article focuses on the position in New York, we begin with New York’s version of this rule (NY RPC 1.6), which differs in a number of respects, including both the definition of what is confidential information (NY RPC 1.6(a)), as well as in the exceptions, specifically including the scope of the “self-defense” exception.

NY RPC 1.6

CONFIDENTIALITY OF INFORMATION

(a) A lawyer shall not knowingly reveal confidential information, as defined in this Rule, or use such information to the disadvantage of a client or for the advantage of the lawyer or a third person, unless:

(1) the client gives informed consent, as defined in Rule 1.0(j);

(2) the disclosure is impliedly authorized to advance the best interests of the client and is either reasonable under the circumstances or customary in the professional community; or

(3) the disclosure is permitted by paragraph (b).

Confidential information consists of information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential. Confidential information does not ordinarily include (i) a lawyer’s legal knowledge or legal research or (ii) information that is generally known in the local community or in the trade, field or profession to which the information relates.

(b) A lawyer may reveal or use confidential information to the extent that the lawyer reasonably believes necessary: …..

(5)(i) to defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct; (emphasis added) or …