Lawyers who participate in Internet listserv discussions should avoid including any confidential information that could be tied to a particular case or controversy, the Los Angeles County bar's ethics committee advised Aug. 19 (Los Angeles County Bar Ass'n Professional Responsibility and Ethics Comm., Formal Op. 514, 8/19/05).
Listserv postings that give identifying details about cases can result in unexpected problems such as possible waiver of work product protection or inadvertent communications with judges involved in a client's case, the opinion explained.
As a springboard for its discussion, the committee considered communications on a hypothetical listserv created by a section of a local bar association for members of the section to communicate with each other.
In the hypothetical, one member posted an inquiry on the listserv seeking an accountant to serve as an expert witness. Another member responded by recommending a specific certified public accountant; a third member read the recommendation and posted a sharp criticism of that CPA.
A judge who actively participates on the listserv read the messages, realized that this particular CPA was scheduled to testify before him soon, and then posted his own message suggesting that messages to the listserv be censored to avoid such ex parte contacts.
In considering this hypothetical, the committee analogized a listserv discussion to a public conversation conducted by e-mail. "Even communicating through a closed Listserv is like e-mailing a letter to the editor of a newspaper, or participating in a call-in radio show or a conference call,
via e-mail," the opinion said.
Attorneys must be vigilant about safeguarding client confidences, the committee emphasized, noting that new forms of communication can seduce lawyers into forgetting this ever-present duty.
The hypothetical in this opinion illustrates that even seemingly innocent exchanges on a listserv can lead to unexpected problems, the committee said. Although the request for an expert and the responses did not seem to involve client confidences, "given the inherently public nature of a Listserv, a discussion about an expert referral on a Listserv, whether requesting or responding with information, could impair a lawyer's ability to continue representing a client, by improvidently disclosing information or engaging in ex parte communications with members of the bench," the committee found.
For example, the panel noted, an attorney who offers an opinion about an expert might reveal mental impressions and thereby bring about a waiver of work product protection.
Copyright 2005 The Bureau of National Affairs, Inc.
The United States Law Week
September 13, 2005
74 U.S.L.W. 2131