The Risk Manager, Fall 2004

The cornerstone of the legal profession is the fiduciary duty of client confidentiality. Lawyers are quite sensitive to this obligation when “on duty” – such as during trial proceedings, discovery, and while investigating the matter. Unfortunately, too many lawyers let their guard down during breaks in the action, on social occasions, and in informal settings. Just think of the things you have heard when a person near you in an airport uses their cell phone to discuss business details and sometime rather personal matters.

Gerald Skoning in his article “Loose lips sink ships and other timeless truths” points out these situations in which lawyers get careless and live to regret it:

  • Talking on a cell phone in airports, commuter trains, etc.
  • Talking in elevators with strangers on board.
  • Conversing with other lawyers in courthouse and law office restrooms not knowing who, if anyone was in a nearby stall (think of the movie “The Witness”).
  • Doing work on airline flights on a laptop computer easily seen by other passengers nearby.
  • Doing work on airline flights using the seat-back pocket to store papers as you work (and drink).
  • Using discoverable office e-mail to vent your spleen about clients, partners, loved ones, et. al.
  • Failing to double check e-mail addresses before hitting the send button with the result that your indiscreet and confidentiality busting comments go to the universe at large.

Skoning advises: “Here are a few black letter rules to learn … and stick to: Concentrate on nonlegal business in restrooms; use your cell phone discreetly or not at all; be wary of video voyeurs; never leave a top secret memorandum on airplanes (or maybe have just one glass of wine); and don’t vent in e-mails.”

By the way if this all seems just common sense to you, always remember the odd thing about common sense is that it is not very common.

Source: Skoning, “Loose lips sink ships, and other timeless truths,” The National Law Journal, p. S3, 9/6/2004.