So These Two Lawyers Walk Into A Bar . . . .

Michael E. McCabe, Jr.Confidentiality0 Comments

What sounds like the start of a joke is no laughing matter–at least not for two White House attorneys.

As widely reported last week, Don McGahn and Ty Cobb, President Trump’s lawyers, were overheard at a popular D.C. restaurant discussing/arguing about a highly confidential matter concerning their client: namely how cooperative The White House should be with Robert Mueller’s investigation of Russia’s interference in the 2016 Presidential Election.

And to put a cherry on top of this breach-of-ethics sundae, a New York Times reporter caught the whole conversation.  I imagine their client was displeased when he learned of his counsels’ lapse of judgment.

I have no doubt, McGahn and Cobb, whom I understand are very fine lawyers, were embarrassed by the whole incident.  After all, they blew one of the cardinal rules of legal ethics:  Rule of Professional Responsibility 1.6 states a lawyer “shall not reveal information relating to the representation of a client” unless the client consents to the disclosure or in certain other, limited, circumstances (none of which, incidentally, applied in the case of Cobb and McGahn).

But honestly, I can not help but observe that what Cobb and McGahn did is something I see (and hear) lawyers do all the time.  Indeed, at my prior law firm in Baltimore, we shared an elevator with the U.S. Attorneys’ Office.  I cannot tell you how many times I got stuck in the middle of some deep and obviously confidential conversation between prosecutors.  They would start out in the lobby and continue jabbering away as we got on the elevator and rode to our respective floors, completely oblivious to my presence.  Imagine if I was a defendants’ counsel in one of their cases?

Yes, what Cobb and McGahn did clearly was wrong, but part of the issue is that we can never seem to get away from work.  We may love the quiet confines of our physical office space, but eventually, we have to leave.  And technology ensures that our work comes with us whether we want it to or not.  Take a look around and watch how many people are out and about, completely disconnected from the real world because they are immersed with staring at their phones, or talking on their phones, or (seemingly) talking to themselves (but are actually conversing; thanks again, technology).

And that is what the world is like now when lawyers are alone.  God forbid if you get two of us together who happen to be working on the same client matter, like Cobb and McGahn, and we decide to do something crazy.  Like actually leave the office and go get a coffee.  Or have a cocktail.  Or grab lunch.  Insanity!

It is natural–almost inevitable–that our work will come with us too, as we wander about in pairs.  How could it not? Even without the help of technology, we attorneys have a tendency to get so caught up in the details of what we are working on that we sometimes forget where we are working.

So, unless you and your work colleagues have mastered the art of mental telepathy or remembered to bring along your portable “cone of silence,” sometimes, shockingly, the phenomena known as verbal communication (what we used to call “talking with one another”) actually takes place.  And sometimes that communication does occur in a public place.

Which is to say that it is possible, maybe even probable, that now and again, the same sound wave that transmits your Rule 1.6-protected confidential client information, intended only for the ear drum of your work colleague, may very well find its way into the ear canal of one of the other 7.5 billion occupants of planet Earth.

If you are an attorney, this will happen to you.  Most likely, it already has.  It is not a question of if, but when.  All we can do is try to remember the lesson of the White House lawyers.

Be discrete.  Be careful of your surroundings.  Whisper.  Or just shut up.

And if (when) you do slip up, just hope for your sake that the person who overhears your public-private communication does not understand the language you speak.

And that they are not from the New York Times.

 

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