By Melissa K. Hinote, CP

Confidentiality is one of the most important principles in the legal field. Attorneys are required to maintain client confidences through the doctrine of attorney-client privilege. Rule 1.6 of the ABA Model Rules of Professional Conduct restricts lawyers from revealing information relating to representation of a client, with a few specific exceptions. All jurisdictions in the United States maintain an ethical rule similar to Rule 1.6. Lawyers pass on this ethical requirement to staff in the form of confidentiality agreements. Many legal organizations, such as NALS, also require that members and certified staff keep client confidences in order to remain in good standing with the organization. Canon 4 of the NALS Code of Ethics and Professional Responsibility states: “Members of this association shall preserve and protect the confidences and privileged communications of a client.” Whether under the authority of a legal association or firm policy, law firm staff are bound by the ethical principle of confidentiality to protect the attorney-client privilege.

However, it is easy to forget this hard-and-fast rule or to justify what seem like tiny leaks of irrelevant information. How often do we hear attorneys or staff members mention the name of a client outside of the office or to an outside party? How many people go home after work and vent about a nasty case to family members? Unfortunately, these seemingly innocent situations can have hefty consequences for everyone—the client, firm, and staff member alike.

The staff member could be terminated for breaching the firm confidentiality agreement or for violating firm policy regarding client information. The supervising attorney could be threatened with a malpractice case. The client possibly will have suffered negative consequences from the breach.

As legal professionals and members of NALS, we have a duty to maintain client confidences and protect the attorney-client privilege. Below are some tips for doing so:

1. Think twice before venting about work. You might be tempted to justify small information leaks because your family member or friend does not personally know the client you are talking about. You might think that as long as you do not use a name talking about the details of an anonymous case is safe. Be careful. There is a fine line between venting about work and venting about a specific client matter. Be careful not to cross it.
2. If you have a personal or other business relationship with a client or opposing party, immediately alert your supervising attorney. Even a personal relationship with a client can cause issues regarding which matters are part of your outside relationship and which are confidential under the ethical rules.
3. Protect clients from themselves when possible. If you notice a client speaking about his legal matters in a voice loud enough for others to hear, kindly remind him that you are attempting to keep his matters confidential and that in order to best serve him, you need him to be mindful of that as well.
4. Do not engage in unnecessary conversations about client matters, even at work. Sometimes a juicy case will arrive with an extra load of dirty laundry. Do not indulge. Talk about the weather rather than the details of that steamy medical malpractice case. Gossiping about client matters, even with co-workers at the same firm, is unprofessional and could lead to unintended breaches of confidentiality.
5. Double and triple check fax numbers and email addresses before pressing “send.” The simple statement that we always include on communications: “This is privileged communication, etc.” should not be the first line of defense against unintended disclosure. In fact, it is a pretty poor defense since there is nothing tangible stopping the unintended recipient from reading the communication.
6. Check phone numbers twice as well and be careful when leaving voice mails to make sure that you have the correct number. Do not leave any revealing information on the voice mail other than your name and number.
7. If you use your work or personal cell phone to access your office email in-box or other data, be sure it is reasonably protected from prying eyes. Do not leave it unattended and use a password lock to prevent others from accessing confidential information through your phone.

The attorney-client privilege exists to encourage clients to be open with their lawyers. The more open a client is with his attorney, the more effective the attorney’s representation can be. In order to best serve the client’s interests, all members of the legal team must closely guard the confidential information surrounding a client’s legal matters…”