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 extremely important.
That lesson applies to far more than lawyers. It applies in real life, especially in this era when every random comment seems to end up on Facebook, or worse, on the evening news. It happens.
It happened recently in sports. And it was a lesson not only for people whose sports-related careers involve learning about trades, injuries and more as part of their jobs. It was a lesson for lawyers; a lesson that hit remarkably close to home.
It happened in professional basketball, and despite the denials coming from all fronts, coincidences like this just don’t happen. It serves as a reminder that confidential means confidential, even when you love your spouse and have a happy marriage.
Here’s the story. The central character is Bryan Colangelo, the former president of basketball operations for the Philadelphia 76ers professional basketball team. For those of you who aren’t Philadelphia sports fans, or who don’t follow professional basketball, or who missed discussion of the story (it seems) on every news and comedy show, the story offers many lessons for attorneys, especially that lawyers and their staff should never share confidential client information with family members or others, because this “unguarded talk” can lead to very serious consequences.
Colangelo and the team mutually agreed to part ways after a sports website published an article about five Twitter accounts that seemed to be linked to him. The accounts defended Colangelo’s actions for the team but also did far more. Therein lie the lessons for lawyers and their staffs.
The five Twitter accounts disclosed confidential information about the team and specific players, including information unavailable to the public or other teams, that is, the 76ers’ competition. In addition, the Twitter accounts disclosed confidential medical information about players on the teams, information unavailable to the public or the 76ers’ competition.
Colangelo claimed he was aware of one account but knew nothing about the other four that revealed sensitive and confidential information. But he had a difficult time explaining how all five accounts were deactivated within minutes after the website called the team and reported that it was aware of two accounts and their presumed connection with Colangelo.
After the call, the website released its story, highlighting the Twitter accounts and its revelations. The story became a media circus. The team hired a law firm to investigate the allegations. Every sportswriter and column in the world, or so it seemed, was investigating the story and offering their opinions on how the team should handle the scandal.
The team’s investigation found that Colangelo likely was not aware of the four Twitter accounts at issue, which were linked to his wife’s cell phone number. The investigation found, however, that Colangelo was “careless and in some instances reckless” in failing to properly safeguard sensitive, non-public information that was disclosed through his wife’s Twitter activity. The team and Colangelo parted ways, with Colangelo releasing a statement saying, “While I am grateful that the independent investigation conducted by the 76ers has confirmed that I had no knowledge or involvement in the Twitter activity conducted by my wife, I vigorously dispute the allegation that my conduct was in any way reckless. At no point did I ever purposefully or directly share any sensitive, non-public, club related information with her.”
Although he termed his wife’s actions “a seriously misguided effort to publicly defend and support me,” Colangelo never explained how his wife obtained the information if she didn’t learn it from him.
This sordid affair is a lesson for lawyers privy to confidential and sensitive information about their clients — information that they may not disclose without violating the Rules of Professional Conduct.
Consider some examples. It could be the criminal lawyer who reveals to his wife that his client admitted committing the crime for which he was charged. The lawyer didn’t know, however, that his wife wanted a divorce, and to really emphasize her hatred of her husband, she tells all her Facebook friends about the criminal’s admission of guilt.
Or consider a lawyer who discusses a client’s sensitive medical information, only to discover that one of her daughters is friends with the client’s daughter. The lawyer’s daughter then reveals that information to the girl.
In these examples, a lawyer (it could also be a staff member) revealed confidential information to a person who was not entitled to know about it. Regardless of the situation, the person revealed confidential information that could prejudice a client, and that violated 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 his or her 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.”
Some lawyers and their employees, like everyone else, like to talk, or perhaps brag, about their firms’ clients, their influence or their presumed importance. Revealing interesting tidbits is one way to do so, albeit one that can place them in disciplinary hot water. But seemingly innocent revelations are not so innocent when they include confidential information.
That may well be what happened to Bryan Colangelo. His tenure in Philadelphia was filled with controversy, and he was not universally popular. He probably had frustrating days dealing with players and their agents, or was upset about his players’ injuries, and needed to vent. By disclosing sensitive information with his comments, Colangelo may have revealed confidential team information as well as HIPAA-protected information about players.
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. Otherwise, they may find themselves in a fate like Bryan Colangelo’s.
Consequently, this sports story is also a lesson about what lawyers and their staff must never do.
About the Author
Daniel J. Siegel is the principal of the Law Offices of Daniel J. Siegel and provides ethical guidance and Disciplinary Board representation for attorneys and law firms. He can be reached at firstname.lastname@example.org.