Posts Tagged ‘confidentiality’

I wasn’t going to weigh in. But attorney-client confidentiality confusion is back in the news. This time it’s over President Trump’s personal lawyer Michael Cohen and Fox News Talk Show Host Sean Hannity and whether there’s an attorney-client relationship between them. So comment I will.

However, in place of comprehensively revisiting the topic again here, I direct you instead to one of this blog’s most highly read posts, “When is a client a client? On what establishes an attorney-client relationship.” It’s on point and why I decided not to let the moment pass, especially since pop culture (see below) and even some lawyers remain muddled about the subject.

https://cdn.morguefile.com/imageData/public/files/a/alvimann/preview/fldr_2008_11_07/file0001224520150.jpgLawyer, former judge, and Hannity’s Fox News compadre Andrew Napolitano typifies the misconceptions. Discussing this week’s revelation that Hannity was Cohen’s mystery client on “Outnumbered Overtime” with host Harris Faulkner, Napolitano pushed back on Hannity’s claim he “may have” paid Cohen $10 to get attorney-client privilege. Napolitano told Faulner, “I must tell you that that is a myth. The attorney-client privilege requires a formal relationship reduced to writing for a specific legal purpose.” 

Having someone pay a lawyer a buck or ten-spot to inoculate a conversation as a privileged attorney-client communication is a common contrivance in novels, movies and on shows like “Better Call Saul” and Breaking Bad.”

But the good judge is wrong. You don’t need a writing. In a nutshell, the bright-line test to create an attorney-client relationship is whether or not the person consulting a lawyer does so “with a view to obtaining legal services.” A signed attorney-client contract or the payment of a fee — whether $1, $10 or $10,000 — isn’t relevant to establish that relationship.

Why does this matter? It matters when a client becomes a client because of the protections of the attorney-client privilege upon which clients rely. For an attorney-client privilege to be raised, an attorney-client relationship must exist.

For more about “the myth of the dollar bill as a prerequisite to the formation of a privileged relationship and the myth that all communications with a lawyer are protected,” see “Better Call Saul: Is You Want Discoverable Communications: The Misrepresentation of the Attorney-Client Privilege on Breaking Bad” and “Sean Hannity’s idea of ‘attorney-client privilege’ was right out of Breaking Bad.”


Credit: Sean Hannity, caricature by Dokey Hotey, at Flickr via Attribution-ShareAlike 2.0 Generic License.


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Clueless social media users.

Lawyers are ethically required to preserve inviolate the confidences of their clients. Every lawyer is taught this. Every lawyer knows this. But when it comes to social media and especially, lawyer listservs, now and again this client confidentiality mandate gets surprisingly overlooked. Lawyers using social media aren’t supposed to post extremely fact-intense, problem-specific questions that might identify particular cases or clients. But it happens.

As it turns out, though, lawyers aren’t the only blundering ones. Randy Cohen a.k.a., The Ethicist,” writes in Sunday’s “NY Times Magazine” about the ethical breaches implicated “When Med Students Post Patient Pictures” without patient consent on Facebook.

In Cohen’s wryly written advice column, the questioner asks about possible violations of patient privacy when photos of patients with supposed “comical maladies” are posted online without their knowledge. Sure the photos don’t show faces or names, but like lawyer listserv ‘hypotheticals,’ the weirder and more specific the facts, the greater the chances are of identifying who’s involved. The ethics question posed to Cohen involves a photo with the following caption, “A 5-foot-9 Hispanic male walks into a bar . . .” under a picture of a patient with a piece of rebar piercing his abdomen.”

Human punch lines.

But as usual, Cohen, who is actually a humorist not a trained ethicist, misses the mark. Instead of an ethical rebuttal of the medical students’ so-called “gallows humor,” he chides the students for embarrassing patients as “human punch lines.” His answer is unsatisfying as the matter raised involves something more serious than sophomoric joking around like . . .

“A man walks into a bar with a duck under his arm.
The bartender asks: “Say, where did you find the pig?”
“It’s not a pig, it’s a duck,” the man answers.
To which the barman replies: “I was talking to the duck.”

Medical ethics.

Doctors, like lawyers are required to follow codified rules of professional conduct. So Cohen should have highlighted the Facebook photo posters’ flagrant violations of the AMA Code of Medical Ethics, which these future physicians ought to emulate. At least, mention should have been made concerning violations of the companion ethical mandates established for medical students. Specifically, under the AMA’s Code of Ethics, there’s 5.05 — Confidentiality, which states, “The information disclosed to a physician by a patient should be held in confidence. The patient should feel free to make a full disclosure of information to the physician in order that the physician may most effectively provide needed services. The patient should be able to make this disclosure with the knowledge that the physician will respect the confidential nature of the communication.” And under 5.045 — Filming Patients in Health Care Settings, “Filming patients without consent is a violation of the patient’s privacy. Consent is therefore an ethical requirement for both initial filming and subsequent broadcast for public viewing.” Moreover, even though they aren’t yet licensed doctors, medical students should know better since they take courses in medical ethics as part of their curriculum. Obviously, these Facebook posting med students either dozed off in that class or flunked it.

Ethically dangerous social media.

The issue of med students posting patient photos on social media, though, should resonate among lawyers since there are similar concerns over their own potential misuse of social media. Writing in “Your Practice: Listserv postings raise ethical issues,” author Correy Stephenson mentions warnings from legal ethicists Barry Temkin and Michael Downey that lawyers not violate ER 1.6(a), which states that “a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent.” See, for example, Arizona Current Rule and related ethics opinion, “97-04: Computer Technology; Internet; Advertising and Solicitation; Confidentiality.”

MAN AT LAPTOP 3Additionally, see Los Angeles County Bar Association Professional Responsibility and Ethics Committee Opinion No. 514, “Since one can never know who might read or react to e-mail posted on the Internet, and because it is likely that judges will be included in listservs or other open communication lists, it is incumbent upon attorneys to avoid including any confidential or private information in a listserv or other Internet posting that could be identified to a particular case or controversy.”

Jurisdictions adopting the broader ABA Model Rule 1.6 on duty of confidentiality require informed client consent to disclose or discuss even non-confidential client-related information, such as publicly-accessible, unsealed court pleadings. See, for instance,ILL Supreme Court Announces New Ethics Rules.” The risks are real. In The Matter of Peshek, No. 6201779, Kristine Ann Peshek was charged with running afoul of Rule 1.6(a), of the Illinois Rules of Professional Conduct for publishing client secrets and confidences on the Internet. See https://www.iardc.org/09CH0089CM.html. But worse still, Peshek ended up losing her job.

Listserv ethical issues.

Social media can be dangerous. Lawyers need to be aware of the hazards posed by blogging, business networking, and client testimonials. See “Policing the intersection of online testimonials and ethics” and “Seduced: For Lawyers, the Appeal of Social Media is Obvious. It is also Dangerous.” More specifically, with respect to listservs, in “Social Media for Lawyers | Bench and Bar of Minnesota,” Abigail S. Crouse and Michael C. Flom write “attorneys must be cautious in posting such inquiries to be sure that the attorney is not revealing information from which the client might be identified or other confidential information disclosed.” Also seeWho’s Watching? Beware the Vulnerabilities of Communicating through Advanced Technology” as well as the broader concerns raised by Mercer Law Professor David Hricik at “The Ethics of Blogging, Blawging, Chatting, List-Serving and Just Kabitzing in Public Places,” (2006), at http://ssrn.com/abstract=917180.

I belong to 3 listservs. However, I’ll admit to not being a prolific user, flummoxed as I am by the audaciously risky disclosures often made under the guise of a hypothetical or by the heightened ethical pitfalls raised through seductively frequent use. And unfortunately, not all listservs have clearly delineated user policies to better remind lawyer users about what they should or shouldn’t be doing. Examples of some better articulated user guidelines include the New Hampshire Bar Association’s e-mail discussion list rules and etiquette page and the King County Bar Association’s Listserv Guidelines & Etiquette” and the bba list serve – Boston Bar Association. File:Genevieve-Clark-Bain.jpeg

Beyond this, however, some commentators recommend avoiding listservs with only a few participants. The larger, the less regional and the less specialized the listserv, the lower the risk of inadvertently unmasking a client. Still others recommend something even more extreme. They suggest that question-posters communicate the old-fashioned way, i.e., offline.

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