Lawyers Need To Know When It’s Time To Shut Up

Michael E. McCabe, Jr.Confidentiality, Patent Ethics0 Comments

Always Keep Your Mouth Shut

Always Keep Your Mouth Shut

I was on a long flight recently and had the misfortune to have to sit behind two lawyers for several hours.  For almost the entire duration of the flight, the attorneys were involved in a detailed discussion about what was obvious (to me anyway) to be a client matter.  They were discussing an upcoming deposition, strategical issues, and client communications.  And they had legal documents open on their laptops that I could easily see on their screens without any trouble.  They were totally oblvious to their surroundings.

This type of behavior happens on a shockingly regular basis. I have overheard lawyers discussing confidential client matters in bars, restaurants, elevators, and even while riding in the Amtrak “quiet” car.

One of the most fundamental ethical duties a lawyer owes to her client is the duty of confidentiality. ABA Model Rule of Professional Conduct 1.6 provides that, with limited exceptions that do not apply in the context of any of the examples above, a lawyer “shall not reveal information relating to the representation of a client unless the client gives informed consent” or “the disclosure is impliedly authorized in order to carry out the representation.”  The same duty of confidentiality applies to patent and trademark practitioners and is codified at 37 C.F.R. Section 11.106.

I seriously doubt the lawyers whom I overheard on the airplane, or who were conversing about their case on the train, had received “informed consent” from their clients. I also cannot imagine any good faith argument those lawyers could make that their public communications about confidential client matters were “impliedly authorized” in order to represent the interests of their clients.

As ABA Model Rule 1.6(c) explains, “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.” At the very least, lawyers must always be aware of their surroundings when discussing confidential client matters. Even cell phone communications, which are easily picked up by third parties, should be avoided unless absolutely necessary.  Moreover, when communicating on a cell phone about a case or client matter, the attorney should advise their client that they are on a cellular phone.  Clients will appreciate knowing that you are thinking about confidentiality.

In short, lawyers need to remember when it is time to “zip it.”  Openly and publicly discussing “information relating to the representation of a client” violates the ethical duty of confidentiality and exposes counsel to professional discipline.

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