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Non-disclosure of privileged information through online posts, C2S40 CPRA

Section 40, Canon II

SECTION 40. Non-disclosure of privileged information through online posts. – A lawyer shall not reveal, directly or indirectly, in his or her online posts confidential information obtained from a client or in the course of, or emanating from, the representation, except when allowed by law or the CPRA. (2023 Code of Professional Responsibility and Accountability or CPRA)

1. Non-disclosure of privileged information through online posts

Under this section, whether directly or indirectly, lawyer are prohibited from making online posts of “confidential information obtained from a client or in the course of, or emanating from, the representation, except when allowed by law or the CPRA.”

a. Oversharing

In age of social media, and for lawyers using this technology, there is a tendency to overshare. While lawyers are not prohibited from using social media and posting personal matters, they should be alert and wary of posting content related to their clients or their professional engagements.

First, clients may wish privacy. This is particularly important if it relates to sensitive matters, such as domestic abuse, being the victim of a crime, and similar therewith. For businesses, they may wish also that matters be kept confidential to avoid reputational risk or harm to their enterprises and/or brands.

Second, opposing partis may wish privacy for the same reasons.

Third, witness may wish privacy for the same reasons.

Fourth, presiding officer may not want the attention resulting from social media posts, particularly hearings that are confidential or sensitive, such as an arbitration case.

Fifth, while not meaning to, lawyers may inadvertently or accidentally leak confidential or sensitive information that would link the subject matter of the online post to their clients, who again may wish privacy or confidentiality.

These are just some of the potential consequences of oversharing.

b. Profiling or digital forensics

Although lawyers may not directly mention or show posts that could link a client to a case, it is still possible to do so by profiling or doing digital forensics, especially if there are enough content that one may be able to piece two and two together.

c. Media training

Lawyers may consider having their junior lawyers or staff undergo media training in order to properly educate and train them with the use of social media and potential consequences if such use violates confidentiality and the lawyer-client privilege.

References

Canon II, 2023 Code of Professional Responsibility

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