As we’ve noted before (here and here), the ethical duty of confidentiality is broad, and can even cover publicly available information. Now comes a reminder that based on the confidentiality rule you should obtain consent before using your client’s name in marketing materials — and that some jurisdictions go even farther. For instance, South Carolina last month added a comment to its version of Model Rule 1.6 that expressly requires permission before using client information for advertising purposes, even including “generally-known” client information.
How about case citations?
The South Carolina bar had filed a petition last year seeking to amend Rule 1.6 to allow lawyers to reveal citations to published judicial opinions without getting consent from clients involved in the case. But the law of unintended consequences kicked in.
Instead of approving the petition, the state supreme court tightened the confidentiality rule, saying in its order, “We decline to amend the rule as proposed by the Bar. Instead, we … add a new comment to the rule reminding lawyers that Rule 1.6 requires lawyers obtain informed consent from clients before revealing information about the representation to advertise their services. The comment further clarifies [that] this obligation applies regardless of whether any information revealed is contained in court filings or has become generally known.”
The new comment notes that one exception to the broad duty of confidentiality embodied in Rule 1.6 is where disclosure of information is “impliedly authorized,” in order to carry out the representation. (It’s easy to see that without such an exception, you couldn’t negotiate with the other side in a dispute, for instance, without express client consent; that would make representing a client unnecessarily cumbersome and inefficient, wasting resources and increasing the cost of legal services.) But when it comes to legal marketing, the new comment says, there’s no such implied exception, because “the disclosure is being made to promote the lawyer or law firm rather than to carry out the representation of a client.”
Instead, the comment says, a lawyer must “obtain informed consent from a current or former client if an advertisement reveals information relating to the representation. This restriction applies regardless of whether the information is contained in court filings or has become generally known.” Further, the consent must be specific: “General, open-ended consent is not sufficient.”
This goes farther than other state versions of Model Rule 1.6, and may be a burdensome slippery slope when it comes to “generally-known” information. Certainly, if a lawyer links to a reported case on her firm web biography, someone can follow it to see which party the lawyer represented. But is the case citation itself confidential information that must be safeguarded under Rule 1.6?
On the other hand, clients value confidentiality and many want complete control over whether a firm publicizes its relationship with that client. For instance, as a condition of the representation, many large organizations expressly prohibit their outside counsel from mentioning the fact of the representation in their marketing materials without express consent.
The bottom line is that legal marketing aims to generate positive good will towards you and your firm. Even if your own jurisdiction has not gone as far as the Palmetto State on case citations and other “generally known” information, you should be leery of identifying clients in marketing materials without their consent. Client disapproval of your advertising efforts can erase any upside you may gain, turning a potential positive into a negative.