How to Avoid Accidentally Disclosing Confidential Information to a Lawyer
I read a lot of legal documents during the course of my job, and I have to say that there’s nothing more annoying than reading a deposition transcript where I can’t follow what someone is talking about because their lawyer keeps asking them questions like “What did you do next?” or “Did you speak with anyone at ABC Corp. after that meeting?” From the perspective of the person being deposed, it almost feels as if their personal attorney is interrogating her says, William D King.
In most states (including New York), lawyers are prohibited from disclosing confidential client information to third parties without prior consent from their clients. In fact, the Model Rules go even further by making it an ethical violation for counsel to use or disclose confidential information when they know or should know that the person communicating with them cannot be legally compelled to divulge the same information.
The general rule is this: just because someone has retained a lawyer, that does not mean they can then go out and tell their lawyer everything about their case. An attorney-client relationship may not exist where there’s no reasonable expectation of confidentiality.
In short, confidentiality is so important in business litigation that attorneys need to balance the ethical duty of loyalty and confidentiality against their legal duty of candor and competence. It’s a tricky balancing act because it requires lawyers to be mindful about what they say and do, but at the same time not be paralyzed by fear of accidentally disclosing confidential information.
What follows are some tips on how to stay out of trouble…and why you shouldn’t always rely on your lawyer to tell you if you’re about to cross the line:
1) If you think that two people may have discussed the same event or subject matter. Don’t assume your lawyer knows all about it. You need to introduce those persons to each other so that they can compare notes explains William D King.
2) You may not realize that your lawyer doesn’t know as much as you do about. What’s going on with your case—for instance. What happened before a certain date, who was present at a meeting, or the contents of an email. For this reason, if someone sends you a document that you think might contain confidential information. Just ask first before passing it along to anyone else.
3) If there’s only one person in the room with you and your attorney is asking questions about things they have no business knowing about. Don’t be rude by refusing to answer the question—resist the temptation to respond with “I’m sorry? Are we allowed to talk about this?” Instead, ask your lawyer if they want to talk about this outside of the presence of the other person.
4) Don’t assume that your attorney knows what you told them during prior conversations (especially if no one else was present and if you haven’t been depose yet). Put it in writing…and even then, have a witness with you when discussing anything related to your employment.
5) In meetings with opposing counsel, don’t announce out loud that “my lawyer says I can share all kinds of confidential information with you”. You need to get permission from your attorney first so as not to violate any ethical rules. Putting it on the record will also protect both parties. If anyone ever questions whether confidences were disclose says William D King.
6) Don’t believe everything you read on the internet. It’s okay to seek out and speak with others who have been involving in something similar to your own case. But just because someone else has already disclosed information about their case doesn’t mean that it’s public information too.
7) Your lawyer needs to know what you’re thinking about doing before you do it—for example. If opposing counsel asks for a meeting. Tell your attorney first before going off on your own to meet with them. This will help your attorney prepare a strategy going forward, which is completely different from giving up confidential information. And even though you may not be legally require to disclose anything during this meeting. There are certain things that can’t be because of legal implications.
8) If you think the other lawyer slipped up and said something confidential. Don’t try to get back at them by telling everyone what they did wrong. This isn’t really about getting even but instead jeopardizing your own case…which means that it won’t get protection by the attorney-client privilege. Also, don’t ever write down anything you remember from a conversation between opposing counsel. Thinking that it will help your attorney later on. That’s not an attorney work product. Which are only things in anticipation of litigation (so any notes or memos would be discoverable).
9) If you feel like your employer is treating you differently ever since filing an EEOC charge. Tell your lawyer instead of trying to solve the problem alone. “Retaliation” is a separate violation that can give you access to more remedies. Beyond what you initially requested, so it will help your case if the new evidence is documented.
10) If you threaten to go on a media campaign unless they settle your case. Don’t expect your attorney’s advice to be confidential! Lawyers cannot ethically advise someone who wants to use public pressure or threats against their adversary. You are under no obligation to tell them whether or not this is true. But just know that it could have an impact on any future settlement negotiations.
This is just a sampling of the types of things. That could torpedo your case or result in sanctions if mishandled explains William D King. If you do end up getting sue, it’s okay to tell someone and bring in another lawyer. Before moving forward (especially when it comes to seeking out witness testimony). But for now, keep your confidences with your current counsel. And don’t engage in any misconduct that might undermine what they’re doing on your behalf!