Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association.

Ethical Cautions to Take with Listserv Collaboration

For centuries, English inns of court have provided an opportunity for barristers to roundtable ideas about their legal practice and to provide guidance to younger members of the profession. The American inns of court provide a similar model for US lawyers. But, with technology, lawyers are able to seek guidance and share their thoughts with colleagues outside their firms through a far less formal, but widely prevalent vehicle, the listserv. Although this presents a wonderful opportunity to get quick feedback on issues that arise in practice from a wide array of commentators, it also represents a perilous environment for the unwary.

The primary ethical issue that arises is, of course, confidentiality. It is increasingly common for a listserv to host a “hypothetical” question that is, in fact, very real. The practitioner seeking guidance wants, of course, to provide sufficient detail to enable responders to give good answers to whatever questions are posed. And experience tells us that a better story, especially with more intriguing and unusual details, will likely yield more responses.

The problem with this is that, by providing more detail, a lawyer may be describing a case that could relate to only one client. Imagine seeing a question 20 years ago from Robert Shapiro about preparing for a murder trial about a Hall of Fame football player accused of killing his former wife and her boyfriend. It is hard to imagine a practitioner who would not know exactly who the client was. Although California’s confidentiality rules are stricter than those in other states, practitioners may consider looking to comment 4 of Model Rule 1.6 for guidance on this issue. It provides, “A lawyer's use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved.”

Lawyers may also wish to reconsider the extent to which they want to rely on a listserv for guidance about the practice. Whereas many learned practitioners offer sage advice through such forums, there is no guarantee that the lawyer who responds has any more competence regarding the issue than the one who poses the question. Yet, the lawyer who has posed the hypothetical has presumably exhausted research efforts before publicly openly asking for assistance. This may raise several issues if things go wrong in the representation. The lawyer has left behind a permanent electronic footprint indicating a certain level of unfamiliarity with the representation. And, there is similarly a record of advice provided to the lawyer seeking help that he/she may have to explain if not followed. A practical solution to these issues may be to leave a more generic request for somebody with experience in a particular area who is willing to discuss the subject offline.

Listservs are potentially extraordinary vehicles to discuss professional issues. They enhance the legal community by promoting the sharing of ideas among lawyers who do not otherwise share the same resources. But practitioners are well-advised to consider the information they provide and how they package their requests for help. 

-- David Majchrzak 

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**