The Ethics of Confidentiality
Ellen Lockwood, ACP, RP
Canon 4 of the Code of Ethics and
Professional Responsibility of the
Paralegal Division of the State Bar of Texas
states:
“A paralegal shall preserve and protect
the confidences and secrets of a
client.”
Many of us have worked on high-profile
matters. In those situations, everyone
involved is often given strict instructions
on how to maintain confidential information
about the case and who may answer
questions from outside the firm. However,
when working on regular matters for regular
clients, we should be equally cautious.
Confidential Means Confidential. Of
course, virtually all information provided
by your client is confidential. That means
you should not discuss it with family or
friends. You must also assume that in a
restaurant, everyone at the next table can
hear what you say. You should not discuss
client information in elevators. You should
even be careful in your office if there is the
possibility of a visitor being in the office.
Although we often give vendors highly
confidential information such as documents,
you should be careful not to tell
vendors anything that is confidential.
People will sometimes assume that if you
told them something, it must be okay to
tell someone else. Care should also be
taken in discussions with contract employees,
particularly those who aren’t working
directly on your client’s file. Some contract
employees may not appreciate that information
is confidential.
In some instances, witnesses should not
be told everything about a case. Some witnesses
cannot always be trusted to appreciate
the confidentiality of information, even
though they often think they are entitled
to know everything. Witnesses and even
clients should be reminded often about
discussing the case with outsiders. A paralegal
friend worked with an attorney who
had a client who would talk to anyone,
anywhere, about his case, especially if she
was an attractive woman. The attorney had
to remind the client that the attractive
woman in the hotel lobby who was so
eager to speak with him the morning of
trial could be working for opposing counsel.
It turned out she was a member of a
shadow jury hired by opposing counsel!
Care should be taken not to discuss confidential
matters within earshot of others.
This means paralegals should not discuss
matters in elevators, common areas, and
restaurants. If confidential matters must
be discussed on a cell phone, move to an
area where the conversation cannot be
overheard.
Often confidential matters are overheard
by visitors to a law office. Paralegals
should be aware that other clients, vendors,
and visitors may be in the office.
Sometimes, even discussing a matter using
abbreviations or other shorthand is not
enough. Others may overhead such a discussion
and still be able to determine
which matter is being discussed.
Paralegals should take care not to discuss
these matters with others in the legal
department, law firm, or even other
employees of the client unless directed to
do so by the client or supervising attorney.
Paralegals should not misinterpret casualness
of work environment or the friendly
nature of a professional relationship as
relaxing the need for confidentiality.
Paralegals should work closely with their
supervising attorneys to be clear regarding
who may have access to what information
at what time.
Paralegals should also be aware that attorney
ethics rules prohibit even acknowledging
that a client is represented by a particular
firm or attorney. There may be public
information, such as pleadings or filings,
that indicates representation, but law firms
and attorneys may not discuss their representation
unless given permission to do so
by the client. This rule applies to paralegals
as well.
Settlement Agreements.
Settlement agreements
are often confidential and may be
voided if the terms are revealed to anyone.
Even if the settlement isn’t confidential, it
is probably inappropriate for you to discuss
it with anyone. I was involved in a
very high-profile case and the settlement
agreement was confidential. Another
attorney in the firm asked me the terms of
the settlement assuming that because he
was a member of the firm I would tell
him. I was uncomfortable doing so and
directed him to the attorney who worked
on the case. Better to have the attorney
determine whether it was appropriate to
provide the information to another attorney
in the firm no involved in the case.
Corporations. For those of us who work
in corporations it can sometimes be more
difficult to determine what is confidential.
Of course, terms of mergers, sales, and
acquisitions are often confidential. New
products or areas of business, plans for
expansion, potential layoffs, clients of the
company, and much of other information
about a company could be considered
confidential. Even if information is public,
you should not discuss details with anyone
outside the company.
Confidential Means Forever.
Regardless
of whether a matter has been concluded
for days or decades, it must always remain
confidential. There is no time period after
which it is permissible to discuss client
confidences, details of a settlement agreement,
or other information.
Keeping Up Appearances.
In addition to
avoiding disclosing confidential information,
we should work to avoid even the
appearance of impropriety. If your behavior
is consistently above reproach, then
when confidential information gets out
(and it sometimes will), your past conduct
will assure others that the information
could not have come from you.
Ellen Lockwood, ACP, RP, is a past
president of the Paralegal Division and
served as Chair of the Professional Ethics
Committee of the Paralegal Division from
1997-2004. She is a frequent writer and
speaker regarding paralegal ethics. You
may contact her at 210.832.3382 or ellenlockwood@
clearchannel.com.
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