Posts Tagged ‘confidentiality’

Can doing right be wrong?

Friday, November 29th, 2013

The AP is reporting that the paralegal who supplied documents in fight against tobacco companies died in Mississippi last week.  As reported in the Star Tribune:

He worked for a Kentucky law firm representing the then-Brown & Williamson Tobacco Corp. and leaked thousands of pages of internal memos and studies concerning smoking and health that provided newfound ammunition to tobacco opponents.

The information made national headlines. News organizations reported the information showed Brown & Williamson executives knew decades earlier that nicotine was addictive and that they funneled potentially damaging documents to lawyers to keep them secret.

A few years later, the tobacco industry agreed to a massive settlement with the states over smoking-related health costs.

The paralegal, Merrell Williams, said of himself, “”I think to a lot of people Merrell Williams is a hero,” he said of himself in the interview. “I haven’t done anything wrong.”  Certainly Williams isn’t the only one who regards him as a hero. What he did changed a lot of lives and may even have saved some. Still it is difficult to say he didn’t do anything wrong. He was after all a paralegal. Persons who take on that role assume the same obligation of confidentiality as the attorneys for whom they work.  Words like “leaked” and “whistleblower” are euphemistic words that tend to obscure the fact that what he did almost certainly violated that obligation. It is wrong to violate that obligation.

Anyone who practices as a legal professional for over three decades will likely run into circumstances that make honoring that obligation very difficult. I certainly have. I recall many sleepless nights struggling with the implications of being bound by rules of attorney-client confidentiality. Each time the obligation to maintain confidentiality won that struggle. I honestly cannot say what I would have done in Williams’ position. But if I chose the path he chose I would not be able to shake the feeling that in order to do something right I had done something quite wrong.

When to Breach Confidentiality

Sunday, September 5th, 2010

I often wonder how Lynne DeVenny at Practical Paralegalism can find the time to post at all much less to be on the quantity and quality roll she has been on for the past couple of months. (In addition to everything else, Vicki Voison, The Paralegal Mentor, reports that Law Crossing has chosen Lynne as its Legal Staff Member of the Week.) I generally have no problem writing about a topic already covered in another blog, if I feel I can add to the topic. Unfortunately when Lynne posts on a topic, there’s seldom much that can be said that she has not already said. Also unfortunately she frequently gets to the best topics before I do.

In this case, she gotten the scope on a story that originates right here in Oxford, MS: “A news story out of Oxford, Mississippi illustrates one of the rare times that a lawyer or paralegal can reveal a client confidence: to prevent reasonably certain death or substantial bodily harm. Rule 1.6, ABA Model Rules of Professional Conduct.” The post is entitled, “What Happens When your Client Threatens to Blow up a Government Agency.” You can read the whole post by clicking the link. I’ll be using it for ethics instruction for sure.

Paralegal Tells Tales Out of School

Monday, August 30th, 2010

According to UPI.com:

A former paralegal for a New York lawyer says his star client, heiress to a copper fortune, once gave his granddaughter a $10,000 dollhouse.

Cynthia Garcia told the New York Post that Huguette Clark was so generous to Wallace Bock her gifts became a joke at his law firm. She is also said to have donated $1.5 million to build a bomb shelter in the Israeli community where one of his daughters lives.

Staffers once created a phony will making him Clark’s major beneficiary and gave it to him at a holiday party.

Clark is now 104. She now lives at Beth Israel Medical Center and has not seen in her 42-room apartment in Manhattan or her houses in California and New Canaan, Conn., for decades.

The Manhattan District Attorney is investigating whether Bock and accountant Irving Kamsler have cheated the heiress.

Garcia told the Post that Bock recently telephoned her after several years without communication and asked her not to talk about his relationship with Clark.

“What they’re doing to her is horrible,” Garcia said.

Clark’s father, William Clark, was a onetime school teacher who made a fortune in copper. He represented Montana in the U.S. Senate for a single term and died in 1925.

Now if any of these allegations are true, I have absolutely no sympathy for the attorney and hope he is prosecuted to the fullest extent of the law as well as disciplined by the proper bar authorities.  I do, however, have a problem with a paralegal, ex- or not, discussing this information with a newspaper.

I do not oppose, in fact I encourage, whistle-blowing for this type of activity. But whistle-blowing consists of reporting misfeasance or malfeasance to the proper authorities. Giving this kind of information to a newspaper is not just unprofessional vis-a-vis the attorney, but a violation of the  client’s right to confidentiality. Assuming the statements are true, can the paralegal truly believe that Bock or her family would want this story plastered in the Post? Even if she does truly believe it, she does not have the right to make that decision. That is what confidentiality is about.

The possibility that it may all come out as a result of an indictment or trial is of no weight. If that should happen, the disclosure will be the result of a court proceeding, not a unilateral decision on the part of a person who once took on the weighty role of a member of a legal team committed to the confidentiality of client information. The rules of ethics allows the former, not the latter. Whistle-blowing to the authorities at the risk of losing one’s job is an act of integrity. Telling tales to the press when there is no risk to you, is most definitely not an act of integrity or professionalism.

Online Ethics – Updated

Tuesday, May 11th, 2010

We’ve spoken here previously about some of the perils of internet use in the law office. Today I am passing on a story from ABAJournal.com entitled, “Ethics Officials Seeing More Cases from Lawyers’ Online Foibles.” It is about lawyers, but is just as applicable to paralegals:

Lawyers who are more circumspect in person are making online mistakes that are landing them in trouble with ethics officials.

James Grogan, chief counsel of the Illinois Attorney Registration and Disciplinary Commission, recalls an early case that got the attention of bar counsel in more than one state, the National Law Journal reports. Steven Belcher, a temporary lawyer at a St. Louis law firm who was licensed in three states, was helping defend a wrongful death case when he decided to e-mail a picture of the deceased to a friend, the story says. The body of the overweight man was pictured lying naked on an emergency room table. Belcher added his own commentary.

The result was a 60-day suspension, the story says. “It got our eyebrows up,” Grogan told the publication. “We thought, ‘Wow, are we going to see more of these?’ Well, I think it’s clear we are starting to see more.”

The story notes an increase in interest in the issue. Bar associations and bar counsel hold seminars on online ethical mistakes, and the ABA Commission on Ethics 20/20 will consider whether existing ethics rules adequately address online transgressions.

“It’s not as if lawyers never misbehaved before,” the story says. “But now they’re making the same old mistakes—soliciting for sex, slamming judges, talking trash about clients —online, leaving a digital trail for bar counsel to follow.”

Susan Gainen’s Lawyerist.com post, “6 Rules for Protecting Confidential Information” (brought to my attention by Lynne Devenney at Practical Paralegalism) is well worth the read in this regard. Her first two rules are:

1. Your conversations. Never talk about clients or client business outside of the office. The guy at the table next to you knows EXACTLY who you are talking about because his client is on the other side of the deal.

2. Your tweets or blog posts. Tweeting or blogging about your work are very smart business development tools, but they are also fraught with peril. Robert Ambrogi lists 16 good reasons to Tweet, but notes: “Before you post to Twitter, consider the consequences. A casual tool such as this makes it easy to unwittingly create an attorney-client relationship or overstep an ethical rule. Even with only 140 characters, you can easily get yourself in hot water.”

The point is that “online” is “outside the office” even if you are sitting in the office when you blog, tweet, email, or otherwise reveal information. Unless your system is secure, even internal communications may be exposed to the “outside.”

Update:

Just an additional thought from Steve Lohr’s story in the New York Times on the Library of Congress archiving Twitter messages:

Knowing that the Library of Congress will be preserving Twitter messages for posterity could subtly alter the habits of some users, said Paul Saffo, a visiting scholar at Stanford who specializes in technology’s effect on society.

“After all,” Mr. Saffo said, “your indiscretions will be able to be seen by generations and generations of graduate students.”

People thinking before they post on Twitter: now that would be historic indeed.

Another Internet Danger to Your Career – Updated

Thursday, September 10th, 2009

ABAJournal.com has a post dealing with an attorney in trouble because of posts on her blog which states in part,

A former Illinois assistant public defender’s blog musings about her difficult clients and clueless judges has landed her in trouble with disciplinary officials.

Kristine Ann Peshek has been accused of revealing client confidences, allegedly for describing her clients in a way that made it possible to identify them. Peshek referred to her clients by either their first names, a derivative of their first names, or by their jail identification numbers, according to the disciplinary complaint filed on Aug. 25. The Legal Profession Blog noted the accusations.

Peshek counters that she would never have posted information that she believed would lead to identification of a client, absent the client’s permission or unless the information is a matter of public record. She tells the ABA Journal she is in the process of hiring a lawyer.

This is, of course, a problem not only for attorneys, but for their paralegals. Less obvious it the fact that it is a problem that extends well beyond blogging to Facebook and other social networks, emails with friends and family and off-line conversations. It is one thing to talk about a difficult, exciting, or interesting “day,” and another to talk about a difficult, exciting or interesting case or client. The latter requires extreme care and in most instances the best advice is “Don’t.” Keep in mind that later the well-known “Monday morning quarterbacks” may be judging whether your musing have cross the line with regard to confidentiality. They will be doing so with the benefit of hind sight and often without the proper context.

It is true that confidentiality is not broken if the client gives permission or the information is part of a public record. But there will be questions:  Do you have a record of the client’s permission? Was the permission given independently with complete knowledge of the facts, circumstances and consequences? Did the client have time to consider all this before giving permission? Was the client influenced by his dependent relationship with you? Was ALL of the information you revealed part of the public records? And many more. The best way not to cross the line is not to come near it.

For more on problems with mixing your professional life and social media see Lynne Devenney’s post “Social Media 101: Mojitos and Mourning Don’t Mix on Facebook” on her blog, Practical Paralegalism.