How Was Work Today, Dear?
Lawrence J. Fox guesses that the obligation to preserve client confidences is the ethics rule that lawyers break more than any other.
The confidentiality principle is straightforward. Rule 1.6 of the ABA Model Rules of Professional Conduct, for instance, states, “A lawyer shall not reveal information relating to the representation of a client.”
Rule 1.6 does contain a few exceptions, especially when a lawyer reasonably believes breaching a confidence is necessary to prevent death or serious injury, or to protect his or her own legal interests in connection with a case. (The ABA Model Rules of Professional Conduct are the basis for most state ethics codes for lawyers.)
But Rule 1.6 makes no exceptions for table talk–or pillow talk–with spouses or significant others. Nor does the rule exclude other family members, neighbors, golf buddies, bridge partners or, as Fox puts it, Saturday nights at 11 p.m. after a couple of martinis.
“It’s my sense that that kind of pillow talk goes on all the time,” says Fox, a lawyer in Philadelphia and a past chair of the ABA Standing Committee on Ethics and Professional Responsibility. “But it’s a hard violation to catch because the person they’re confiding in typically isn’t going to let it go any further.” Fortunately, Fox says, those kinds of violations of Model Rule 1.6 and its variations at the state level generally do little, if any, harm.
Nevertheless, say Fox and other ethics experts, lawyers should keep the confidentiality rule in mind even in conversations at home and among friends. But how closely lawyers heed that caution appears to vary. And finding the appropriate line can get even trickier when a spouse, for instance, also is a lawyer. I
n many cases, practicalities help to offset potential problems with pillow talk violations of the confidentiality rule, says Lynda C. Shely, the former director of lawyer ethics for the State Bar of Arizona. Shely is now a private practitioner in Scottsdale, Ariz., who advises other law firms on ethics and risk-management issues. Her husband is a commercial litigator.
Shely, a member of the ABA Standing Committee on Professionalism, says she and her husband never talk about client matters at home. “With three kids and a dog, we have enough to talk about without talking about work,” she says. “The reality is that most of the time the spouse is so bored by it, he or she never tells anybody else.”
Trouble At Home
Miriam Rittmaster, a solo practitioner in Overland Park, Kan., who is married to another attorney, says lawyers may not realize how much leeway they actually have to discuss their cases since much of what they do is a matter of public record. Moreover, she says, ethics rules generally allow a lawyer to consult with other lawyers on cases.
“My feeling is, as long as the individual person is not identifiable, I can talk in generalities and hypotheticals without violating the client’s confidences,” she says.
But just to be on the safe side, Rittmaster says, her standard fee agreement specifically provides that she may seek her husband’s advice on client matters. David Abeshouse, a solo in Uniondale, N.Y., says he probably is overly cautious when it comes to protecting client confidences. His wife, a nurse, doesn’t fully understand his secrecy, says Abeshouse, especially when some of her friends who are married to lawyers tell her things their spouses have told them about their clients.
“I explain to her that this is precisely one of the reasons I can’t–and they shouldn’t–divulge client confidences,” Abeshouse says.
Fox can empathize with that dilemma. Years ago, he says, a family friend of theirs asked him in confidence to recommend a divorce lawyer. Later, Fox’s wife was shocked when their friend revealed she was getting a divorce. And then, as Fox recalls, the friend said to his wife, “I talked to Larry about this months ago. Didn’t he tell you?”