The Ethics of Confidentiality
Ellen Lockwood, ACP, RP
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 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.
If you have any questions regarding any ethical issue, please contact the Professional Ethics Committee.
Originally published in the Texas Paralegal Journal © Copyright 2007 by the Paralegal Division, State Bar of Texas.