General Counsel, In-House Counsel, Legal Ethics, Screw-Ups

Inside Straight: On Blabbing

In-house columnist Mark Herrmann shares a few examples of how NOT to protect client confidences.

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Let me regale you with two recent examples of lawyers disclosing client confidences. There’s a lesson tucked into each.

First: An acquaintance sent me the résumé of, and asked me to speak to, a young lawyer. The idea was to give some general career advice, rather than necessarily to hire the person.

I’m a pushover, so I agreed to have a cup of coffee with the relatively new lawyer. Over coffee, he (or she, but I’ll use the masculine) explained that what he liked least about the job he’d just left (which was identified on his résumé) was being asked to do unethical things. My curiosity piqued, I asked for an example. He explained that he’d been asked to draft a contract that committed his employer to violating the law as part of the contractual relationship. (Think along the lines of, “We will ship the illegal weapons to you in New York.”) My young acquaintance said that he’d gone to the general counsel, who had instructed him to draft whatever contract the business wanted. The earnest young lawyer had solved the ethical problem by drafting a contract that, when read carefully, would prohibit the illegal conduct. (Think: “Under no circumstance will any weapons of any type be shipped pursuant to this contract.”)

I’m afraid I won’t be recommending this person for any jobs. . . .

Client confidences are — how should I phrase this? — confidential. If your client has done something illegal or unethical, you may owe certain ethical duties. But you typically have one overriding obligation: You don’t blab about it unnecessarily, such as to some clown you’ve just met for a cup of coffee and career advice.

I’m not impressed when you tell me that you worked for a client that asked you to do illegal things, because that improperly reveals that your client was doing illegal things. I’m not impressed when you tell me that the general counsel doesn’t care about the illegality, because that’s again revealing information not meant to be shared with the general public. And I’m not impressed that you unilaterally decided to draft a contract that thwarted your client’s intent: You’re a relatively young lawyer; if you couldn’t convince others that the client was behaving badly, perhaps you were wrong and the others were right. Moreover, if I were to hire you, how do I know that you wouldn’t take it upon yourself to draft contracts that thwart our client’s intent?

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You may have thought that you were impressing me with your ingenuity, but you were mistaken.

The second recent example of a lawyer disclosing confidences came by e-mail. A reader of this column sent me a note asking how she (or he, but I’ll use the feminine) should deal with a general counsel who “just doesn’t want to listen to legal advice about compliance issues.” The e-mail explained that my reader’s current corporate employer was violating several laws, and the general counsel refused to fix the situation when my correspondent raised the issue. My correspondent signed her name to the e-mail, and I dutifully sent back some suggestions. (The suggestions included things such as (1) consider whether you have a duty to report the illegality “up the ladder” at the corporation, (2) if necessary, consult a state bar ethics hotline or independent ethics counsel, and (3) if you’re certain that your company is knowingly acting illegally, get the heck out of there.)

Curious about what company might be intentionally violating the law, I googled my correspondent’s name. She naturally had a Linked In profile that identified where she worked. Another confidence disclosed!

I don’t mean to blame only the young here. You’d be surprised how often you’re having a beer with an old-timer who will choose to regale you with stories about a client (identified by name) that engaged in some illegality. I, for example, heard (and still remember, many years later) this amusing anecdote: “Implants’R’Us hired as general counsel a plaintiff’s personal injury lawyer who had never handled a product liability case. He didn’t know anything about the medical device industry. When I asked the GC for documents showing that the FDA had approved the company’s surgical implant, the GC gasped: ‘You mean the FDA has to approve those things? Shoot! I should have thought of that!'”

Or the old-timer will think it’s cute to tell you about a client (identified by name) that possessed some breathtakingly bad documents known only to him: “At one meeting of the in-house lawyers, the general counsel put up a PowerPoint slide with a map that had little gravestones showing where all the people had died from using the company’s product! Can you believe it? But we never turned that puppy over in discovery!”

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There’s a chance someone will find these violations of confidences to be cute. But it’s more likely people will be startled by your indiscretion and remember for decades that you can’t be trusted to keep a secret.

There are better ways to attract business.

Mark Herrmann is the Chief Counsel – Litigation and Global Chief Compliance Officer at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

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