Lawyers: As a group, we think we’re pretty special. Servants of the law and all that. But in truth, there’s really only one thing that sets us apart from other professionals: the attorney-client privilege (yes, yes, we can also represent others in court, but that’s not the point of this post).
Few other confidentiality doctrines in the Anglo-American legal tradition even approach the sanctity of the privilege we share with our clients. Anyone can read the law and tell others what it means. The privilege, and its analogous duty to keep our clients’ information confidential, form the bedrock of what makes our profession what it is.
It’s therefore important from time to time that we remind ourselves of the importance of the privilege and reinforce some basic common-sense steps to make sure that we don’t inadvertently tell the world our clients’ secrets. Much of this post may state the obvious, and I’m sure most readers will think to themselves, “I’d never do that.”
However, the potential for inadvertently running afoul of the attorney-client privilege is high these days, given constantly evolving technology, fast-paced travel and the “small world” nature of our profession, where the degrees of separation among practitioners continue to shrink. Therefore, from time to time, we could all benefit from a refresher on the basics we learned way back in that legal ethics course in law school.
For instance, just the other day, two very seasoned attorneys — one a White House special counsel, the other the personal lawyer of the President of the United States — sat at a local DC eatery, openly discussing their work. I do not mean to single them out, or to in any way wade into politics. Instead, I use their conversation as an example to highlight a particular dilemma lawyers uniquely face.
Everyone chats about what they do at work. On average, we spend more time working and with our co-workers than we do at home with our loved ones. Work occupies the largest portion of our waking hours, so, of course, we talk about it. Sit and listen in any coffee shop or restaurant, and you’ll overhear people talking about what’s happening in their office. The problem is that for members of the bar, most of what we’re doing at work is supposed to be kept confidential. This leads conveniently into my first bit of advice. The practice of law is like Fight Club. What’s the first rule of Fight Club? Don’t Talk About Fight Club. I seem to recall that the second rule was something akin to Don’t Talk About Fight Club.
Second, remember to be discreet when traveling. I spent a lot of time on planes this summer, and on almost every trip, someone from another DC law firm was sitting near me doing work. That’s certainly fine. Many of us travel a great deal, and we simply don’t have the time to sit back with a good book. Plus, our phones are off, a rare opportunity to delve into a memo undisturbed. I get it. However, as airplane seats get smaller and smaller, more and more people have a nice unobstructed view of your high definition laptop screen. They can see that you work for Dewey, Cheatem and Howe, because the logo is prominently displayed on each page.
And, if they want to they can also easily read the name of your client and your recommendations for dealing with the fact that their new joint venture partner in Kazakhstan wants dividend payments sent to an account in the Cayman Islands. Yes, I appreciate that it’s rude to gaze at someone else’s laptop, but should Emily Post be the foundation of an attorney’s strategy for protecting privileged information?
Third, don’t advertise to the world what you’re working on.
I frequently see other lawyers in airports and on the Metro, lugging binders with their clients’ names prominently displayed on the spines. More often than not, the organized attorney has added a brief description of the matter. I kid you not, I have actually seen, in public, a binder that displayed a client’s name with the words “FCPA Investigation — Nigeria” printed underneath in high-visibility, bold font. That could be read from the other end of a Metro car. Yikes!
Fourth, beware autofill. We are very comfortable with email. Perhaps too comfortable. I read an article yesterday about how an attorney at a major law firm inadvertently included a reporter at the Wall Street Journal on an internal firm communication about a sensitive client matter. It will come as no surprise that the reporter published an article all about it.
To be clear, I do not intend to shame the firm in question, but the incident underscores the utter danger of email autofill. It’s just so darn convenient. Like most of us, I send out dozens — if not hundreds — of emails a day. That wonderful autofill makes this so much easier.
I’m corresponding with Gaius Julius at Cloaca Maxima Inc. for the umpteenth time today? Easy peasy! I just type in J-U-L and voila! Autofill does the rest. But I’d better be wary, because my ribald college roommate has the same last name. Breezing through autofill and not double checking that the addressees are right is not so different from taking a client memo to Main Justice and reading it through a megaphone. Hyperbole? Sure, but it drives the point home.
Finally, tread carefully at conferences. We’ve all linked up with clients at conferences. It’s a great opportunity for a tête-à-têtes, especially if we don’t work in the same city. The problem is that we’re all wearing name tags. And those name tags frequently display the organizations for which we work. Oh look, there’s N. Discrete from Billem Harder LLP with his client at Bribes-R-Us Inc. over there in the lobby, speaking loudly about how their business unit in Topeka flew the Minister of the Interior from Corruptopia to Paris for a five-day jaunt without approval from corporate. Now that’s interesting.
In sum, remember the privilege and keep it sacred. It’s what makes our profession special, and our clients are counting on it.
Bill Steinman is a Contributing Editor of the FCPA Blog. He’s the senior partner at Steinman & Rodgers LLP, a boutique law firm in Washington, D.C. specializing in international anti-corruption compliance and investigations.
Every lawyer should read this article at least once a year in order to reinforce some basic common-sense regarding privilege and confidentiality.
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