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Lawyers and Client Confidentiality







Lawyers and Client Confidentiality

Now that some of the smoke has cleared from the Ty Cobb-John Dowd lunchtime chat at BLT I figured I would provide my two-cents on it from a legal ethics point of view.

For those of you who either live outside the beltway or didn’t click on the link above, a few months  back two of President Trump’s lawyers chose to have a loud discussion of things pertaining to Mueller’s investigation, their client’s interests, and so forth, whilst sitting next to a reporter from the New York Times.

What’s interesting about this situation from a legal ethics point of view is this — the ABA Model Rules Committee (and the comparable committees of at least 24 state bars, including Virginia) have updated their Rules of Professional Conduct over the last couple of years to include the duties lawyers owe to clients with regard to the creation, storage, and retrieval of information.  While those rule changes were focused on and driven by technological changes in our society (i.e., the use of email, the vulnerability of email and other systems to outside hackers, etc.) they all would have been equally applicable in a pre-computer age.

New specific language has been added to ABA Model Rule 1.1 (which is entitled “Competence in the Practice of Law”) and ABA Model Rule 1.6 (which is entitled “Protecting Client Information”).   It is important to note that the new commentary doesn’t change the lawyer’s duty; indeed, the confidential handling of client information and secrets is nothing new and is rather fundamental to being a lawyer.

What is new is the focus on client confidentiality as it pertains to electronically stored information…but you don’t need a computer or an email address to run afoul of these rules.

The ABA Model Rules

As a bit of background, lawyers and the practice of law are regulated at the state level, which means there is no national standard for just about anything pertaining to lawyers.  Each state has its own rules of Professional Conduct, its own disciplinary procedures, and so forth.  To further the practice of law, the American Bar Association has its own Model Rules of Professional Conduct   which form a sort of model for the states to follow.  Each state is of course free to adopt one or more of the ABA’s Model rules if it so chooses.

ABA Model Rule 1.1 now has the following language:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

ABA Model Rule 1.6 now has a subsection (c) that reads as follows:

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.

Here is what is interesting — nothing in the above-language addresses technology directly; as written, it would have been entirely possible to violate subsection (c) of the rule in the days before computers and e-mail. A year or so ago I did an ethics presentation with Paul Lawrence  at the TAFEF Conference and as part of my prep I went looking for just such an ethics case..and I found one, from the state of Indiana.

In In re Lehman a lawyer committed what would have been a low-tech breach of the new Rule 1.1 and 1.6 by pitching boxes of sensitive client documents (things like tax returns, birth certificates, and so forth) in his dumpster without bothering to shred them.

And now, we have a second example of a low-tech breach of some high-tech rules…if that is what this is.  Let us not forget, readers, that we live in an era of top-notch TV shows like Breaking Bad and Homeland that feature elaborate trickery and complicated ruses…I seriously doubt that lawyers at the level of Ty Cobb and John Dowd would be stupid enough to loudly discuss the private legal matters of POTUS at a public cafe in Washington, D.C. just a few blocks away from the White House.  Anyone who has lived in DC for any amount of time knows that eyes and ears are everywhere, and that is especially true right in front of the Washington office of the New York Times…


So there is still no new thing under the sun — modern rules and regulations concerning lawyers and client confidences are guided by ancient legal principles, because lawyers have always had a duty to protect such information.

And, while I don’t know any lawyers crazy enough to engage in the sort of public loud bragging that was apparently going on at BLT that day, I do know plenty of lawyers who would be willing to look stupid (and therefore sacrifice themselves) if by doing so they somehow served a client interest…and that is what I suspect here…