The Ethics of Confidentiality

Ellen Lockwood, ACP, RP

Ellen Lockwood, ACP, RP

Many of us have worked on high-profile cases. When working on those types of cases, 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 cases or for regular clients, we should all be equally cautious.

Real Life Isn’t Like TV. Although I enjoy television shows like “The Practice” and “Ally McBeal,” in reality, we should not carry on conversations in the courthouse halls like the characters do on those programs. They discuss strategy, plea bargains, and evidence in the hallways without ever checking to see who is around them, lowering their voices, or trying to find a more private corner. If those programs involved real cases, they would often waive confidential information before the trials even began. Another mistake you sometimes see TV attorneys making is talking directly to opposing parties who are represented by counsel. No matter how well you know someone, or how innocent your intentions may be, no one in your office may try to directly contact anyone related to the opposing party once they are represented by counsel. If you are at all unsure, check with your attorney before proceeding.

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!

At times, information in a matter will be designated as confidential, even though similar information has become somewhat public through pleadings or other means. Information designated as confidential may include testimony, specific documents, details of settlement agreements, and even whether the parties are discussing settlement. In those instances, it may be best to avoid discussing that information with anyone not working directly on the matter. It is probably safest not to tell even coworkers any more than you would want to them to tell someone else, unless you are certain they fully understand the confidential nature of the information. Better to reiterate the confidentiality than wrongly assume someone understands.

Settlement Agreements. Often settlement agreements are 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 probably not discuss details with anyone outside the company.

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, CLAS, is the Chair of the Professional Ethics Committee of the Legal Assistants Division, a position she has held since 1997. She is Treasurer of LAD and a past president of the Alamo Area Professional Legal Assistants in San Antonio.