The South Carolina Supreme Court has added a comment to the state ethics rule on confidentiality requiring lawyers to get informed consent to use information about their representation of a client for advertising purposes, even if that information is publicly available.
The comment also says that “general, open-ended consent is not sufficient.”
The court’s decision flies in the face of how the state bar was trying to amend the rule, and one expert said the rule could be problematic.
In its order, the court noted that it didn’t adopt the state bar’s petition seeking to amend Rule 1.6 to allow lawyers to reveal citations to published opinions without being required to obtain client consent, but instead added the comment.
If linking to an opinion, without anything else that is clearly advertising is being called advertising, South Carolina could be heading down a slippery slope, Bloomberg Law Analyst Mindy Rattan said.
There are different degrees of restrictiveness among state attorney advertising rules, Rattan said. And ever since the American Bar Association revamped its lawyer advertising rules last year, states have been giving their rules a fresh look, but no one view prevails, she said.
But by appending the advertising comment to the confidentiality rule, South Carolina’s rule has become much more restrictive, she said.
However, Barbara Seymour, an attorney with Clawson and Staubes in Columbia, S.C., whose practice focuses on professional responsibility and legal ethics, said there’s nothing new about South Carolina’s rule.
It doesn’t restrict advertising, but merely prohibits revealing information related to the representation of a client without consent, unless one of the listed exceptions applies, even if it is information that is in the public record, she said. The court is simply reminding lawyers “of its scope and its applicability to law firm marketing,” she added.
Seymour said she doesn’t know the court’s reasoning but could imagine there might be clients who would object to their lawyers “trading on their legal troubles, even if the result was positive.”
“Most clients likely would have no problem with it, but it makes sense the choice should be theirs,” she said.
The rule raises more questions than it answers and could therefore be problematic, one South Carolina lawyer said.
In other spheres like HIPAA and the Gramm-Leach-Bliley Act, confidential information is categorically different from publicly available information, Jack Pringle, a privacy and data protection attorney with Adams and Reese in Columbia, S.C., said.
“For example, information contained in a published case by definition can’t be confidential,” Pringle said. And while there may be “information relating to the representation” that is more difficult to categorize and is therefore subject to the rule and its comment, information that has become public appears to be a pretty bright line, he said.
And as a practical matter, how do you enforce the requirement? Pringle asked. Does it mean that every attorney who lists reported cases on Martindale-Hubbell needs to get client consent prior to doing so?
If consent can’t be generally given, what would specific consent look like, he said. Does it need to be on a continuing and ad hoc basis? Do attorneys need to obtain consent to post a link to a reported case on social media and then obtain consent again to include a link to that opinion in a blog post or online discussion? Pringle asked.
The comment should pose no problem for lawyers who have been seeking consent from their clients all along, said Seymour.
“Will that be difficult and even impossible for some lawyers for some clients, yes,” Seymour said. “But ensuring compliance with the advertising rules takes effort and attention, regardless of the nature of the content.”