GP MENTOR: What I Wish I’d Known about Confidentiality

Vol. 29 No. 6

By

Rodney S. Dowell (rodney@masslomap.org) is director of the Massachusetts Law Office Management Assistance Program.

In today’s law office, issues of confidentiality abound—particularly in a shared office space. I have seen the cause of these concerns. Attorneys will set up a second working area with confidential files in shared conference rooms, or they will leave confidential documents on the copier or facsimile machine. Experts constantly advise us to protect the confidentiality of our clients when we use the Internet, send files by e-mail, or store our firm documents in the cloud. And all these issues are very important. However, the one thing I wish I had known about confidentiality as I left the comfort of the big firm and started my own practice was that staff often does not intuitively understand the need to maintain the client’s confidence.

I know, that it is silly, and I was naive. Why should non-attorneys know what ABA Model Rules of Professional Conduct, Rule 1.6, Confidentiality of Information, so clearly expresses? That is that a “lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b)” (which sets forth a limited number of reasons why the client’s confidence may be breached).

Now, I don’t think one really requires a law degree to appreciate the need to maintain a client’s privacy. Certainly, if I go see a professional, say a dentist or doctor, I expect that this professional and the staff will treat what I say as confidential. Why would I expect anything less from an attorney’s staff, my staff? Despite these expectations, I have now seen and known many people over the years who are working in law offices but clearly do not intuit the need for confidentiality.

Clients’ trust in their attorney and staff is a vital component of a successful relationship. If the attorney has that trust, then the attorney will be more likely to be told the embarrassing or legally damaging subject matter that needs to be addressed now. The attorney then has the information needed to represent the client effectively. However, if the client’s trust does not extend to the staff members, then a series of impediments arise to full and open disclosure and the development of a long-term relationship. Unfortunately, not every attorney, and certainly not every newly minted secretary, paralegal, or mail room employee, will have a solid understanding of the rules requiring the office to hold information in confidence. Of course, it is our obligation as the leader of the firm to ensure that these employees or other persons who are “participating in the representation of the client or who are subject to the lawyer’s supervision” do not breach the client’s confidence. Comment 16, Rule 1.6, and Rules 1.1, 5.1, and 5.3.

It is incumbent on us as attorneys to manage our practice by ensuring that we make reasonable efforts to prevent the inadvertent—or possibly even the intentional—disclosure of information. Simple management tools will allow you to place the proper focus on the need for confidentiality. Try these six steps to ensure that your staff will not breach the client’s confidence.

  1. Learn your state’s Rules of Professional Responsibility regarding the confidences of clients.
  2. Do not assume that anyone whom you supervise understands the need to maintain client confidences.
  3. Create an employee manual that fully explains the applicable rules, how these rules will be maintained, and the consequences to an employee for failing to maintain client confidences.
  4. Have employees and other individuals whom you supervise provide a written acknowledgment of the policy.
  5. Review the policy on an annual basis.
  6. Be self-aware of your own compliance, and coach others if they fail to comply.

As you rush into starting your new firm and focus on getting clients, setting up your office, and performing legal work, do not forget the need to protect the client’s confidential information.

 

 

 

 

 

 

 

 

 

 

 

 

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