The headlines are head-scratching. What is happening to our world? And while this article is not a political commentary, you cannot ignore what President Trump says and does on Twitter when discussing the perils of social media. Whether it’s revealing the content of a confidential government matter or offering his perspective on everything from sports to current events, it seems that no topic is immune from a Twitter blast.
But it’s the revelation of confidential information that is dangerous. For example, in August 2019, the President revealed a detailed aerial image of an Iranian launchpad that, according to Jeffrey Lewis, an arms control expert at the Middlebury Institute of International Studies at Monterey, “looks like it was taken from an airborne platform, not a satellite.”
While it is true that the President has the authority to declassify any information he desires, lawyers and their staff do not. Yet the stories about the accidental, the inadvertent, and even the intentional disclosure of confidential and sensitive information keep coming. And making news and headlines—embarrassing headlines.
Why?
For numerous reasons, I think, and I have written about this before not only for Law Practice Today, but also for numerous other publications. Yet lawyers think “it won’t happen to me,” and often do nothing to prevent “it” from happening.
Recently, when President Trump’s now-infamous phone call with Ukrainian President Zelensky became public, Special Assistant to the President and Director of Government Communications Tori Symonds emailed “What You Need To Know” talking points to White House “friends.” But, oops, she also sent them to pretty much everyone else, including many Democrats who view the President from a less-than-friendly perspective.
Symonds further displayed her ignorance of technology when she attempted to “recall” the message through Microsoft Outlook. She didn’t know that, as Microsoft explains and as most Outlook users know, “Message recall is available after you click Send and is available only if both you and the recipient have an Office 365 or Microsoft Exchange email account in the same organization.” Oops. Super-huge oops. Those talking points found their way to Twitter and other social media in seconds.
While embarrassing, and potentially job-threatening, Symonds’ mistake did not reveal confidential information, just information not intended for the President’s opponents.
Imagine if Symonds was a lawyer or a paralegal, and she sent an email containing confidential information and then tried to recall it. Or, what if Symonds was an attorney who carelessly included confidential information in document production? In the latter situation, the court was less than helpful to the careless lawyer.
As reported in ABA Litigation News, the U.S. District Court for the Southern District of Ohio held that a non-specific clawback agreement did not protect a careless document production from waiver.
In the case, IRTH Solutions, LLC v. Windstream Communications, LLC, the court examined the Rules of Evidence, the attorney-client privilege and other relevant sources, concluding that “the privileged documents represent more than 10% of the documents produced; only 2200 total pages were produced and Defendant had months to produce the first production; and the review process ‘mistake’ was not the result of a technical error or mistake borne from hours and hours of review for this case.” The court concluded that the production was reckless and that the privilege had been waived.
In every situation, whether it is inadvertently disclosed discovery, or a lawyer revealing confidential information in a tweet or on Facebook, the result is embarrassment, potential sanctions, potential attorney discipline, and the possibility that the attorney may be fired.
So, why do we keep discussing these situations? After all, it’s a lesson taught in law school: Do not discuss confidential client information with anyone outside your firm. We heard it again and again. If you do, and the person to whom you divulged the information decides to tell someone else, you’ve got a problem. It could be a small problem, or it could be a whopper if the information is really, really important.
Consider some examples. It could be the criminal lawyer who reveals to his son that his client admitted committing the crime for which he was charged. The lawyer told his son, who bragged about it to his friend, who told another friend, whose mother was a prosecutor. Or, what if the lawyer told his wife and she tells all her Facebook friends about the criminal’s admission of guilt? After all, her husband told her.
Or consider a lawyer who discusses a client’s sensitive medical information in a courthouse elevator, not knowing that an attorney representing the other party was also on the crowded elevator. That’s why there are signs in hospital elevators, and the parallel to attorneys is clear.
Regardless of the situation, the disclosure violates Rule of Professional Conduct 1.6(a), which prohibits a lawyer from “reveal[ing]information relating to representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation.” The rules also require a lawyer to assure that their staff preserve confidential information.
Comment 2 to Rule 1.6(a) explains that “A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation. … This contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct. Almost without exception, clients come to lawyers to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld.”
Breaches of confidentiality come in many forms, from table talk to publication on the internet. Lawyers have an obligation, however, to protect confidential information. That means that they cannot discuss the information with family, friends, or anyone outside their firms without client consent.
About the Author
Daniel J. Siegel, principal of the Law Offices of Daniel J. Siegel, provides ethical guidance and Disciplinary Board representation for attorneys and law firms. He can be reached at dan@danieljsiegel.com.