You walk out of a courtroom, swiftly walk outside to grab a taxi and your cell phone rings. You pick it up and while attempting to be efficient, inadvertently mention current case strategy. To your surprise, opposing council was standing a few feet away and overheard part of the conversation. She reports it to the judge.
These inadvertent incidents aren’t uncommon. Lawyers have to be aware of their environment and how it impacts their liability. Many law school professors used to tell their students that cases are won or lost in the elevator, and related countless examples of attorneys who misspoke about a case in an elevator or hallway only to cost themselves the case or even be reported for breaching confidentiality. Whether it’s the elevator, outside the courthouse, on the subway or train, at the airport or even a public restroom, there are places lawyers should not be discussing their cases, although it happens frequently. In a recent Law.com article, reporter Allison Dunn noted several social media posts of individuals reporting to have heard lawyers discussing case strategy and settlement negotiation specifics.
The consequences for attorneys can extend beyond one case. They can halt a career. Lawyers may be subjected to an American Bar Association complaint, a breach of confidentiality lawsuit, being reprimanded by the firm or employer, being terminated by the firm or employer, and damaging vital business relationships, not to mention potentially irreversible damage to their reputations.
The good news is lawyers have a lot of autonomy in protecting themselves. Simply put, lawyers should be aware of their surroundings and plan their sensitive discussions around their travelling.
The biggest risk for lawyers today is no longer a conversation in the elevator, but rather the ubiquitous cell phone conversation. The ability to conduct business by phone from anywhere can put otherwise good attorneys at risk. To those attorneys, the best advice is when someone calls and begins discussing sensitive case information, either stop the conversation or attempt to find a secure, private space. If a secure space is not possible, propose the discussion take place at another time. Beyond maintaining a healthy awareness of one’s surroundings while discussing legal matters, lawyers should also work with their agent or broker to ensure their professional liability policy provides protection if such an incident arises.
A lawyer’s responsibility is to adhere to the best interest of his or her clients. This includes keeping sensitive information confidential in all spaces. Erring on the side of caution when discussing any case information outside the confines of a law office will help lawyers safely serve the needs of their clients.