As tempting as it may be to discuss the details of our work, lawyers should always be mindful of what they can and cannot say about their previous and current jobs. While the winning contestant on NPR’s radio show “Wait, Wait . . . Don’t Tell Me!” could win a personalized voicemail greeting from Carl Kasell, an attorney who broadcasts too much information about cases or clients may risk unemployment, sanctions, or even disbarment.
The rules for proscribed discussion topics all relate to one common theme—confidential information. The type of information that is considered confidential will vary from job to job. For example, attorneys in private practice should be informed by their specific employer’s attorney handbook and their state bar’s rules concerning professional ethics and confidentiality of information. Generally, absent the client’s consent or an exceptional circumstance, lawyers are prohibited from sharing information learned during the representation of a client (see ABA Model Rule of Professional Conduct 1.6, “Confidentiality of Information” and Rule 1.9, “Duties to Former Clients”). Similarly, judicial law clerks receive guidance from the Code of Conduct for Judicial Employees, Canon 3D, along with any additional guidelines that are prescribed by the court and judge that employs them. Canon 3D provides that judges should “avoid making public comment on the merits of a pending or impending action and should require similar restraint by personnel subject to the judicial employee’s direction and control.”
Some lawyers are under the impression that information is no longer considered confidential once it becomes public record, but that is not the case. ABA Model Rule 1.9(c) provides that a lawyer must not use information to the disadvantage of a former client except if the Model Rules would permit or require, or if the information has become generally known. Information that is considered “public record” is more expansive than information that is “generally known.” However, as long as you describe a situation with sufficient generality so that a specific client and their situation cannot be identified, then you are likely not violating any rules governing professional conduct.
In addition to confidential information, there is also certain information that an attorney should treat as sensitive and use discretion accordingly. If you are faced with the dilemma of discussing information that is not confidential under the applicable rules of professional conduct or the rules governing your employment, you should still consider using the golden rule: How would you feel if you were in your client’s, colleague’s, or boss’s shoes, and your attorney lacked discretion when discussing certain facts?
If you are asked a question that requires you to discuss information related to your employment, and you are unsure of whether such a discussion would violate the rules, then just politely say no. You cannot go wrong if you err toward discretion. Politely declining to answer a question, along with an explanation about why you are unable to discuss confidential information or a sensitive subject, should do nothing but further your reputation and earn the respect of your colleagues and clients.
Finally, if you are ever in doubt, then call your bar association. In addition to the rules of professional conduct and advisory opinions that provide guidance on ethical matters, most state bar associations have an anonymous hotline that provides free advice to attorneys. The ABA also provides a great list of legal ethics and professional responsibility resources by state.
