Assume that IP attorney A is preparing a patent-infringement case on behalf of his new client, CEO B. After numerous meetings and communications in preparation for the case, IP attorney A (and/or his subordinate) becomes “friends” with the client on Facebook or “connects” with the client on LinkedIn. Unfortunately, one of IP attorney A’s (or his subordinate’s) 700 Facebook friends is married to the in-house GC for one of the soon-to-be defendants in this IP suit. GC’s wife notices the recent online connection posted on IP attorney A’s Facebook page and logically deduces that something is going on. She tells her husband and, the next day, GC’s company files a declaratory judgment lawsuit against CEO B’s company way out in the inconvenient Western District of Kalamazoo (where GC is based) asking for a declaration of noninfringement. Attorney A has now lost the home court advantage and has violated MR 1.6. Rule 1.6(a) proscribes that a lawyer “shall not reveal information relating to the representation of a client unless the client gives informed consent.” Additionally, comment 16 to Rule 1.6 says that lawyers “must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision.” Because simply making a public list of social networking contacts or linking to other websites on a social networking page could disclose a confidential relationship or reveal information related to the representation of a client, lawyers must ensure that their subordinates are made “aware of limits on confidentiality associated with such services.”
