Imagine it is a perfect summer day and you and a coworker decide to go to a restaurant and eat lunch outside. After some small talk, you informally discuss some of the matters you are working on together and even vent a little about some of your colleagues. Now imagine you (and your bosses and your clients) are reading the newspaper days later and realize that your conversation was overheard by a journalist, who then wrote a report on the sensitive information you discussed with your coworker.
This nightmare situation may seem far-fetched, but it is the exact situation President Trump’s personal lawyer, Ty Cobb, found himself in earlier this year. Cobb sat outside at a Washington, D.C., restaurant and discussed the White House’s response to the Russian investigation with another lawyer for the President. Unbeknownst to him, a reporter for the New York Times sat at the next table taking notes on everything they said. This may seem like a rare occurrence and an obvious lack of judgment by Cobb, but lawyers put themselves at risk of revealing their clients’ confidential information every day.
One of the pleasures and benefits of being an attorney is the opportunity to work on projects and cases that are interesting, controversial and, at times, of great public interest. The challenge all lawyers face is keeping their firm’s and clients’ matters confidential. Preserving the confidentiality of such information is a hallmark of the client-lawyer relationship and imperative to keeping a client’s trust and business. Every law student is taught the duties of confidentiality a lawyer undertakes when a client-lawyer relationship is established. Despite that, when spouses, family, friends, and colleagues take an interest in our work and for whom we are working, it is natural to want to discuss the facts and details of a case. Though there is no risk in discussing your work broadly, lawyers must take great measures to avoid revealing privileged or confidential information. Not doing so, no matter how harmless or inadvertent it may be, is a violation of ethical rules.
The duties of confidentiality are detailed in the American Bar Association’s Model Rules of Professional Conduct. Rule 1.6(a) states “a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent.” Rule 1.6(c) states “a lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” Rules 1.9 and 1.18 also extend an attorney’s duty to protect the privileged and confidential information of former and prospective clients, respectively.
Undoubtedly a competent attorney can avoid an intentional disclosure of confidential information. The danger exists when a lawyer is not mindful. The daily pressures of practicing law can be intense and with technology increasing the channels of communication available to attorneys, the potential for an inadvertent breach of confidentiality seems to be greater than ever. Speaking too loudly in a public place about sensitive information is no longer the only misstep lawyers need to be wary of.
In September, an attorney working for Jared Kushner, a senior advisor to President Trump, was fooled into responding to a prank email that appeared to be from Mr. Kushner. The email sought counsel from the attorney about deleting private emails that featured adult content. Though the name on the email was Mr. Kushner’s, the attorney apparently did not notice the unfamiliar domain name in the email address. A screenshot of the attorney’s response to the fake email was later posted on Twitter by the person who sent it.
Just days after that, an attorney representing PepsiCo Inc. inadvertently emailed a Wall Street Journal reporter a memo revealing that the US Securities and Exchange Commission was investigating their client. The attorney had accidentally included the reporter in an email intended for the other lawyers working on the case. In addition to the memo, the email included several other documents containing sensitive information to the company. Despite requests from the attorney’s law firm that the materials in the email be deleted, the newspaper published the private information that had been protected by the client’s legal privilege.
In both of these instances, the attorneys’ lack of attention to detail resulted in embarrassing and damaging publicity for their clients. Unfortunately, both errors could have been easily avoided. In the first case, the prank email purporting to be from Jared Kushner could have been filtered out of the attorney’s inbox if the firm had used an email verification service, which would remove unknown or suspicious emails. Choosing to turn on the “full header” option on email applications can also allow attorneys to more easily identify suspicious messages.
There are many other things attorneys can do to minimize the risk of an inadvertent breach of confidentiality. The most obvious and effective way is to never discuss your client’s confidential or privileged information in public. As Cobb’s story shows, there are too many “small world” instances of attorneys innocently speaking about their clients in front of the wrong people. It is safer to assume someone around you either knows or wants to know something about your client. Always err on the side of caution.
When communicating via email, it always pays to double-check the email addresses you are receiving messages from and all those you are sending messages to. When posting messages or photos on social media and blogs, be extra careful that what you are posting does not provide any identifying information about your client. Also, make sure you know who can access and view anything you post online.
Protecting confidential information can be difficult, but taking a few extra moments to think before you speak or send an email can be the difference between keeping your client’s information secret and reading about it in the newspaper the next day.