Ethics of Disclosing Client Identity in Advertising
Professionals love to advertise success stories. We want would-be clients to know the results we achieved for current clients. However, publicizing specific results could lead to the disclosure of confidential information. Professionals therefore must be cognizant of whether advertising a particular case or representation is likely to cause embarrassment or harm to the client, and ensure client confidentiality.
The New York State Bar Association Committee on Professional Ethics recently issued an opinion regarding the ethics of client confidentiality in advertising. The Committee considered a scenario in which an attorney was asked by a co-op board that was considering hiring the attorney to disclose the names of other co-op boards that the attorney represented. The attorney requested formal guidance from the Committee to determine whether he could divulge this information to the prospective client in order to establish his qualifications to represent it.
In considering the ethics of disclosing client names, the Committee noted that an attorney may include in advertising the names of clients regularly represented by the attorney provided that the client has given prior consent. This consent may be obtained as part of the original engagement letter, during representation, or after the conclusion of representation. Absent specific client consent, however, the Committee cautioned that an attorney must consider whether advertising a specific representation would compromise client confidentiality. On this point, the Committee noted that although the identity of a client generally is not information protected by the attorney-client privilege, the general nature of a consultation may nevertheless constitute secrets of the client that the lawyer may not disclose.
The Committee continued that if a client has requested that a lawyer keep the client’s identity confidential, the lawyer is duty-bound not to disclose the client’s name to potential clients. If the client has not requested that the lawyer keep the client’s name confidential, then the lawyer must determine whether the fact of representation is generally known and, if not, whether disclosing the client’s identity is likely to be embarrassing or detrimental to the client, which will depend on the specific facts and circumstances of the representation. For instance, representation of clients involving criminal law, bankruptcy, debt collection, or family law, is more likely to be embarrassing or detrimental such that the lawyer is required to obtain client consent.
Lawyers who do not have specific authorization from a client to publish their identity and nature of representation should be cautious in advertising these fact to other prospective clients. If the information is deemed confidential, or is likely to cause embarrassment, the disclosure could violate the duty of confidentiality and lead to ethical and civil liability.