Confidentiality

I store my files on the cloud. Whenever you store your confidential stuff on someone else’s computers, you have to be wary of two things: security and privacy. A few weeks ago, I wrote this article about how to beef up your security, so today, I am going to talk about privacy.

The general consensus is that lawyers can use cloud computing. The ABA has put together this map that explains ethics opinions on the use of cloud computing by state. To sum it up, about 20 or so state bars have issued opinions that storing data in the cloud does not per se violate a lawyer’s duty of confidentiality, but you have to use reasonable care in storing your docs online.

There’s a movie on Netflix streaming right now called “Terms and Conditions May Apply.” It’s a scary documentary about how we agree to give away access to our data in the fine print of all of the internet services we use from email to social media. So, how does that relate to confidentiality of client files we store on the cloud?

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Remember when all you had to worry about was your daughter posting naked selfies of herself on Facebook? Now, things are worse.

In what has to be a new low for the Millennial generation, a daughter’s Facebook boasting has cost her family $80,000, and likely ruined the European vacation she was bragging about….

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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. . . .

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Qualified Arby’s employees are literally willing to die for the company.

* Additional thoughts, from Professor Josh Blackman, on Judge Richard Posner’s awesome streak of book reviews. [Josh Blackman]

* Meanwhile, Professor Kyle Graham wonders: How would Judge Posner review Moby Dick, Fifty Shades of Grey, and other classic literature? Incredibly, that’s how. [noncuratlex]

* Apple responded to Samsung’s blame-the-jury appeal with knives out and guns blazing. [Ars Technica]

* This attempt at using a disguise to commit ID theft was so pathetic, I almost feel bad for the guy. And yes, there is a photo. [Lowering the Bar]

* A longtime Arby’s employee fled when a knife-wielding robber broke into the restaurant in the middle the night. And then Arby’s fired her. At least unemployment > dying alone in an Arby’s. [Consumerist]

* Models, runway shows, and confidentiality agreements, oh my! [Fashionista]

Lawyers: the same as trees?

As the superior court aptly observed, “The fact that the meeting occurs in a public place does not destroy the privilege, if no one hears the conversation.”

– Associate Justice Robert J. Lynn of the New Hampshire Supreme Court, in an opinion upholding the existence of the attorney-client privilege, despite the fact that an attorney discussed confidential information with his clients at a meeting that was open to the public.

So, the Customer wants you to take on unlimited liability for breach of confidentiality, indemnify (and hold harmless) for any and all bad acts of your employees, and to carry a multi-million dollar insurance policy. What do you do?

First, begin by triaging these from simplest to more complicated. During a negotiation it can be helpful to appear to “give” as much as possible up front when you’re down to a few points. This way, when the final hot button items arise, you appear reasonable.

Insurance requirements are usually no-brainers, and as long as the amounts demanded are not grotesquely high, your Risk folks will approve the proposed language with very light editing, if any. Today, it is also not unusual for the Customer to demand to be named as a payee in the event of a loss; this is often fine, and usually not an issue. More practice pointers, after the jump….

double red triangle arrows Continue reading “House Rules: Insurance, LoL, Indemnity, and Other Dirty Words”

Back in the winter months, we surveyed Biglaw associates about working on the MLK Day and President’s Day holidays. Well, over half of respondents said they still clocked in on those holidays. But now that the weather is warmer, the barbecue grills are up and running, and partners are on vacation, surely more of you took Independence Day off, right? Take our short survey, brought to you by Lateral Link, and let’s find out.

As always, your responses are kept completely confidential. Stay tuned later this week when we reveal the survey results. For more information on vacation policies, check out the updated law firm profiles at the Career Center, hosted by Lateral Link.

This week’s Career Center Summer Associate Tips Series focuses on the importance of maintaining client confidentiality. Nothing is more sacred to the legal profession than the confidential relationship between lawyer and client. This goes far beyond what is required by the rules of professional conduct. Your personal rule should be very simple — do not talk about the firm’s business, its clients, their problems, or anything related to them outside the four walls of the firm. With anyone. At any time. It is that simple.

The greatest risks are casual social comments. Somewhere in the middle of a case of Heineken you pass along information about something of great sensitivity to a firm client. It was an innocent, alcohol-induced disclosure on your part, but it was a disclosure nonetheless. Now, you may not worry about divulging sensitive information to a trusted friend or confidant, but the greater risk involves those comments made in restaurants, public places, or cocktail parties that directly or indirectly reveal the business of the firm or its clients.

The group at the next table may include three employees of the client, their banker or accountant, a competitor, or associates working for someone about to make a competing offer to buy your client. Trust me. They are there — perhaps not as nattily attired and lacking the Bombay Sapphire martini — but there nevertheless. It is not just legal advice or technically privileged information that you should refrain from discussing freely. It is anything about the client and their business. You risk immediate termination if you violate this rule.

To learn how to avoid more bone-headed disclosures, read more by clicking here. These tips are brought to you by Lateral Link’s Frank Kimball, an expert recruiter and former Biglaw hiring partner.

Don’t forget, for additional career insights as well as profiles of individual law firms, check out the Career Center.