What You Learn at the Office Stays at the Office — A Support Staff Confidentiality Primer
Trust, which is built upon a lawyer’s ethical duty to keep all information relating to the representation of a client confidential, is the hallmark of the attorney-client relationship. Think about it. A confidentiality rule makes sense because it’s an excellent way to encourage prospective clients to seek legal assistance when called for and to help them feel comfortable about speaking openly and frankly with a lawyer once they do, to include sharing information that may be embarrassing or legally damaging. And it should go without saying that lawyers need to know the good, the bad, and the ugly in order to provide effective and competent representation.
This duty to keep all information relating to the course of representation confidential is a broad one indeed. Not only does it include information communicated by the client, but it also includes everything else learned during the course of representation regardless of the source. If any information relates to the representation of a client, even the basics like a client’s identity and the subject matter of the representation, it’s a confidence. And with very few exceptions, a lawyer cannot disclose any confidence absent informed consent from the client, even after the legal matter has been resolved. In fact, this duty of confidentiality is so broad that it is still in play even after a client has died.
On top of all this, lawyers have another ethical obligation which is to make sure that everyone in their employ also keeps all information relating to the representation of any client confidential. In short, if a lawyer couldn’t share the information, neither can any member of his or her staff, regardless of position. Thus, the duty of confidentiality applies to everyone who works at a law firm, from the part-time runner, the fulltime paralegal, the back-office assistant, the new associate attorney, all the way to the most senior lawyer at the firm. As a way to help you understand the ramifications of this obligation, let’s talk about a few specific situations.
All kinds of people can pop up in reception: vendors, prospective clients, actual clients, family members, opposing counsel, and delivery people just for starters. It can be a busy place, particularly if the phone never stops ringing. Given the public nature of this space:
- Never discuss confidential information within earshot of anyone who is not employed at your firm or isn’t the subject client. For example, if you need to let a lawyer know a specific client has arrived, this might mean you pick up the phone and let the lawyer know that her 2:00 appointment is here as opposed to saying Bob Jones is here and he wants to talk to you about his divorce. In a similar vein, never answer specific questions about a client’s matter if anyone else is waiting in reception. Politely suggest they wait to discuss their matter with their attorney in order to keep their matter private. Most people will appreciate your discretion.
- Never leave confidential information in plain view of others. For example, documents sitting on a counter or receptionist’s desk should be placed face down if someone standing at reception could read the documents. Similarly, other than firm employees, no one in reception should ever be able to view an office computer screen.
- Never give out any information over the phone to anyone other than the client. Telephone numbers, addresses, whether a client has an appointment on a particular day, or whether a client has spoken with an attorney at your firm are all confidential pieces of information that should never be shared with anyone outside of your firm. Even something as innocent as telling someone that a client is currently meeting with their attorney can have devastating consequences. Here’s just one example of how. Your firm represents a woman in a particularly volatile divorce. The soon to be ex-husband has been accused of stalking and is a danger to your client and her family. A respectable sounding person calls your firm claiming to be a teacher at the school of your client’s son and is wanting to know if your client is there because there’s a problem that needs to be discussed. Trying to be helpful, you confirm she is there and that you will pass the message along. Shortly thereafter you learn your client’s husband has just taken her son out of school and soon to be out of state. He was able to do this because, as a result of the information you provided to the caller, he knew your client wasn’t going to be able to stop him.
- Never leave detailed voice messages absent specific permission from the client or prospective client. When leaving a voicemail message, you never know who might have access to it. If you can’t speak directly with the client, only leave a return number and state that the phone call is regarding a personal matter. Particularly in contested matters, such as a divorce, don’t leave the name of the firm, or any other confidential information that could be unintentionally shared with a third party who happens to listen to the message before the client or prospective client.
Although convenient, email, faxes, and text messages are high risk when it comes to trying to keep something confidential, in part, because you have no way to confirm that the first and only person who will read a fax, email, or text message is its intended recipient. For example, it’s not uncommon for a traditional fax to go through several hands before it reaches your client, employers regularly monitor employee email and text messages are often received on devices more than one person has access to. Given this:
- Never fax, text, or email highly sensitive information without the direct authorization of the attorney assigned to the case. Sometimes the information being sent is sensitive enough that encryption must be used or the information must be delivered by an alternative means, perhaps via a client portal or hand delivery. If you have any concerns, always ask for clarification regarding the proper steps you should be taking.
- Never send a fax, text, or email that contains confidential information without the prior written consent of the client and always use previously verified contact information. Family members share computers, spouses often have access to each other’s smartphones and know each other’s passwords. Likewise, a minor typographical error in an email address or phone number can result in an unknown stranger receiving confidential information. Since no amount of boilerplate language at the bottom of an email message or on the cover page to a faxed document can ever put that cat back in the bag, double-check the accuracy of every phone number, fax number, or email address you are about to use.
- Never store client confidences on your laptop, a home computer, or any other portable digital device, to include your smartphone, unless the device is password protected, full disk encryption is enabled, and you have specific permission to do so from the attorney(s) you work for. Mobile devices are too easily lost or stolen, home computers are rarely properly secured, and family members often have access to home computers, smartphones, and the like. Worse yet, if confidential client information were to find its way into the hands of someone who doesn’t have your best interests at heart because the device was lost, stolen or breached, really bad things can ensue. Here’s the bottom line: always keep confidential information in a secure location at the office unless and until it is absolutely necessary for you to do otherwise, and again, only after having been given permission to do so.
Outside of the Office
Particularly after something crazy, unexpected, or stressful has happened at the office, it can be tempting to want to share the story with a close friend or family member. Others find that all the juicy things they hear at the office make great fodder for those that love to gossip. So, unless you want to be prematurely terminated from your firm you should:
- Never discuss any firm matters with your spouse, other family members, close friends, and especially on social media. None of the people you would be sharing confidences with are bound to maintain client confidences like you are; and, despite how much you might trust them, sometimes they just can’t help sharing what they’ve learned with someone they trust to keep your secret. This is one situation where the idiom “Loose lips sink ships” holds true. If you find you have a real need to talk with someone, perhaps to find a way to work through a stressful situation, reach out to a professional counselor who is similarly bound to keep all that is shared with them confidential. Otherwise, keep your mouth shut.
- Never discuss any firm matter with any person who works at another law firm. Yes, you may be friends, and I know they can relate, but there is no exception to the confidentiality rule that says it’s okay to talk with others as long as they work in the legal profession and you refrain from sharing the client’s name. At times, enough unique information can be shared that others are able to connect the dots and, on occasion, this can have serious unintended consequences. If you need to get it out, talk with others who work at your firm or, again, reach out to a professional counselor.
- Never discuss firm matters with fellow employees in public places. Be it on a cell phone, in a restaurant booth, at the courthouse, or in a public restroom, if others can overhear the conversation you need to wait and have the conversation elsewhere. No ifs, ands, or buts here, period.
You learned at the beginning of this piece that the duty of confidentiality is so broad that it survives the death of a client, so it should come as no surprise that it also survives the end of your tenure as an employee at a law firm. With this in mind:
- Never discuss former clients or their matters at your new place of employment. The only exception to this would be if you happen to find new employment at a different law firm. Due to conflict of interest concerns, your new firm has an ethical obligation to ask if you happened to have worked on any matters for any of the parties involved with a current matter or potential new matter at your new firm. Simply acknowledging that you have worked on a matter or worked with a specific client at the prior firm is not a breach of confidentiality as long as this is all you share. Disclosing anything more is strictly prohibited, even in informal conversations with a fellow staff member at the new firm.
In light of the above, it’s hopefully becoming quite clear how important your role in helping to maintain client confidences really is. Lawyers have been professionally disciplined, sued for malpractice, and fired from matters due to the indiscretions of staff members, most of whom lost their jobs as a consequence. Now that you know what’s learned at the office is to stay at the office, take it to heart. Not only does your job and your employer’s reputation depend on it; mostly importantly all firm clients expect and deserve nothing less.
Authored by: Mark Bassingthwaighte, Risk Manager
Since 1998, Mark Bassingthwaighte, Esq. has been a Risk Manager with ALPS, an attorney’s professional liability insurance carrier. In his tenure with the company, Mr. Bassingthwaighte has conducted over 1200 law firm risk management assessment visits, presented over 550 continuing legal education seminars throughout the United States, and written extensively on risk management, ethics, and technology. Mr. Bassingthwaighte is a member of the State Bar of Montana as well as the American Bar Association where he currently sits on the ABA Center for Professional Responsibility’s Conference Planning Committee. He received his J.D. from Drake University Law School.