There they were, the President’s lawyers, sitting outside at a café having lunch and engaging in a substantive discussion about the President’s current legal problems.
What could go wrong?
Sunday’s Headline in The New York Times about internal squabbles between the President’s lawyers resulted not from an interview or leaked information—but as a result of the lawyers discussing the President’s legal matters over lunch at a sidewalk café, a discussion loud enough for a nearby reporter and certainly the wait staff and many others to hear.
Was it a violation against the Rule against disclosing “confidential information”?
“Confidential Information” means more than you might think.
Most lawyers know, if they stop and think about it, that they must protect confidential information. It is easy to imagine that this simply means keeping clients’ secrets. What the client tells us is privileged, of course, but whether we are engaged in litigation or a transaction we will learn things that only a few people know and that our client does not want made public. There are of course exceptions where the client has authorized the disclosure, but, in most cases, we are under a duty to keep client information confidential.
So Confidential Information means secrets, right?
Wrong. As used in the Texas Disciplinary Rules of Professional Conduct (the Rules), the phrase “confidential information” is a term of art. It means more than privileged information, and more than what we learn from the client. It includes everything we learn in connection with the representation, including the very fact that we have a client. Look at Rule 1.05 and Paragraph 12 of the Preamble to the Rules.
Lets go back to that lunch.
We only know what was said from what was reported in The New York Times, but there are two obvious problems. Most obvious is simply that protecting client confidences means more than not telling other people when we are not authorized to do so. It also means not talking about client confidences where we can be overheard.
The second concern is whether the information was confidential. In this instance the answer is almost certainly yes under the Texas Rule. The lawyers were talking about sensitive strategic decisions and apparently revealed the existence of documents that had not been disclosed to investigators. Sounds confidential to me.
But even if the President wanted his lawyers to disclose the information they were discussing publicly, there is a larger issue
The Rules exist to maintain the integrity of the legal profession.
If followed carefully, the confidentiality Rule does just this. By shutting down almost all public conversation about our clients it helps the public (and our future clients) believe that we really can be trusted with their secrets. And let’s face it, the public isn’t likely to make fine distinctions between privileged information, secret information, and confidential information.
When lawyers are overheard talking about a case at lunch, on the plane, in an elevator, or in a bar, or seen casually posting or tweeting about a client, it is logical for the public to conclude that our client has not authorized the disclosure of information and that we are not the trusted counselors we claim to be. For this reason alone, even if the discussion is not an ethical violation, it is still probably a bad idea.
But we are surrounded by temptation.
Last year during the election Professor Laurence Tribe Tweeted about a meeting he had with Donald Trump, saying that he had notes from a meeting in which Mr. Trump was seeking legal advice—and that he (Tribe) was trying to determine if the notes were “privileged or not.”
While Professor Tribe was figuring out if his notes were privileged the legal ethics community was quick to point out that by talking about the meeting Tribe had violated his obligation to protect client confidences. Some suggested he be disbarred.
This is the temptation in the age of endless self-promotion. We get new clients by telling folks how important or famous our existing clients are – or by trying to be famous ourselves. The lawyer/celebrity is nothing new, but with social media we are encouraged to create our own fame, and it is hard to do that as a lawyer without talking about our work, which means we are always skating on the edge of saying something that we learned as part of our representation of a client and that means it may be confidential.
There are of course exceptions to the Rule; discussing things that the client has asked you to make public or use in the course of representation for example. These will be the subject of another blog. For today, remember that everything you learn in connection with representing a client, even if it is not secret, is a client confidence. And be careful out there.