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Duty of confidentiality applies at unexpected times

By THOMAS SPAHN, Dolan Media Newswires

tspahn@mcguirewoods.com

 

Every lawyer realizes the strength and breadth of our profession’s duty of confidentiality. Most lawyers know that the duty lasts forever. Many of us include threatening disclaimers whenever we send an email, warning accidental recipients that they must not share the email with anyone else.

Yet lawyers frequently overlook some of the obvious situations in which they may fall short of fulfilling their ethical duty. This can happen to lawyers in any size law firm.

Most of us open our offices to cleaning people, computer repair people, landlords’ agents who replace light bulbs, vendors who deliver furniture, etc. Some lawyers even arrange for folks to enter their offices and water the plants. However, many lawyers do not even think of having these visitors sign confidentiality agreements to protect the client confidences that are easily accessible to visitors.

As long ago as 1995, the American Bar Association explained that lawyers would be “well-advised” to arrange for a computer maintenance company to provide a written assurance of confidentiality when dealing with lawyers’ data. (ABA Legal Ethics Opinion 398 (Oct. 27, 1995).)

Every lawyer should make such arrangements, both for ethics reasons and for risk management reasons. While a lawyer obviously cannot prevent a stranger like that from deliberately stealing and disclosing client confidences, lawyers must take reasonable steps to ensure that they protect confidences. This might require locking up super-sensitive client data, but probably does not require lawyers to stuff everything in a safe each night before the cleaning people come in. However, requiring such individuals to sign confidentiality orders seems like a minimum required step.

In fact, lawyers face ethical issues even when they throw out papers and other trash. The ABA’s 2008 legal ethics opinion on outsourcing explained that lawyers considering such a step should investigate the outsourced service provider’s confidentiality safeguards – “perhaps even its recycling and refuse disposal procedures.” (ABA Legal Ethics Opinion 451 (July 9, 2008).)

Many law firms now have arrangements with companies that haul away and shred or otherwise destroy confidential client papers, assuring a “chain of custody” record so the lawyer can establish that he or she acted reasonably in protecting client confidences.

In 2009, the Ohio Supreme Court issued a public reprimand against a lawyer who discarded client files in a dumpster (and left twenty boxes of other client files next to the dumpster) when he vacated his rental office. (Disciplinary Counsel v. Shaver, 904 N.E.2d 883 (Ohio 2009).) The new tenant had noticed the boxes and actually moved them into a garage, but an anonymous tipster alerted the local media about the departing lawyer’s sloppy disposal.

Although lawyers should be justifiably worried about the ethical implications of these practical situations, they must also remember related attorney/client privilege issues. Most courts hold that clients can waive their attorney/client privilege protection by not guarding their privileged communications carefully enough. Of course, lawyers can also waive a client’s privilege by handling privileged communications in a sloppy manner. Lawyers also have a duty to train their clients about the privilege’s fragility.

Courts have addressed these privilege implications. One case even went so far as to hold that a company had waived its privilege by throwing a privileged document into the dumpster rather than otherwise destroying it. (Suburban Sew ‘N Sweep, Inc. v. Swiss-Bernina, Inc., 91 F.R.D. 254 (N.D. Ill. 1981).)

A more recent decision went the other way, finding that the adversary’s discovery of the document could not have been anticipated because the adversary had to trespass onto the client’s property and search through the trash. (McCafferty’s, Inc. v. Bank of Glen Burnie, 179 F.R.D. 163, 169-70 (D. Md. 1998).)

Given this mixed case law, lawyers should be worried both about the privilege and the ethical ramifications of their sloppy handling of documents.

Lawyers who forget to have a moving company or computer repair person sign a confidentiality agreement or who discard client files without taking reasonable steps to assure their destruction could even end up in jail. All of us should remember that our duty of confidentiality follows us wherever we go and applies to whatever we do.

Editor’s note: Spahn practices as a commercial litigator at McGuireWoods in McLean, Va. He regularly advises a number of Fortune 500 companies on issues involving ethics, conflicts of interest, the attorney-client privilege and corporate investigations.

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