Confidentiality

Jennifer Lawrence

In case you haven’t heard, over the weekend a whole bunch of celebrities got hacked and nude photos of them leaked onto the internet. Let me just start out by saying that hacking into a celebrity’s phone and stealing her nude photos is just a horrible thing. It’s not a funny joke. It’s not something hackers should be high fiving over. Celebrities have the right to live private lives like everyone else and they have the right to take and keep private photos. On top of the embarrassment of having their private photos available to their parents and all of their fans and every pervert with an internet connection, it could seriously damage their careers. This should be another big warning slap in the face to everyone who stores private or confidential things on the internet, especially lawyers.

What lessons can lawyers learn from this unfortunate episode?

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Decorative Scales of Justice in the Courtroom

In today’s complex work of insurance, many insurance risks are “reinsured” by a separate insurance carrier. In those instances, it is not unusual for insurers and reinsurers to have regular communications concerning the insured, and in particular, concerning matters about which they both have an interest. Most of the time, the insurer and reinsurer consider such communications to be confidential, and not subject to discovery. However, whether seemingly confidential communications between insurers and reinsurers is discoverable in litigation involving an underlying insured is not a clear cut question. Outside of Texas, there is a split of authority regarding the issue of discoverability of reinsurance communications. A recent order issued by the Northern District of Texas demonstrates that such communication can be discoverable if an insured can persuade the court that the sought after information is relevant to his or her underlying claims.

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Global Communications

Insurers and reinsurers regularly communicate regarding matters they view as confidential. These communications often relate to claims, both routine and litigated, by the underlying insureds. Insureds, in turn, seek discovery of these communications when claims become contentious and litigated. Recent federal court decisions in Minnesota and Texas demonstrate the willingness of courts to permit discovery of communications between insurance companies and their reinsurers. Conversely, a federal court in Indiana recently rejected requests for reinsurance communications. These cases illustrate the difficultly faced by insurers and reinsurers in understanding the discoverability of their communications prior to litigation. Although insurers and reinsurers may view their communications as confidential, they must be mindful of the potential discoverability of these communications, particularly when litigated claims are involved.

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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….

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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.

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