You’ve probably read about the New York Times reporter who says that he overheard lawyers for President Donald Trump discuss the ongoing Russia investigation at a Washington, D.C. restaurant, and then reported on the talk — which revealed details of a strategy debate, the alleged existence of documents “locked in a safe,” and other purported insight on the internal workings of the President’s legal team.
(If you somehow missed the story — maybe you just stopped paying attention — check out the Times reporting, the backstory on how the reporter overheard the conversation, and the ABA Journal’s report.)
Every reporter’s dream
The NYT reporter, Kenneth P. Vogel, wrote that he overheard the conversation when he happened to be seated at a steakhouse at the next table over from Ty Cobb and John Dowd. Cobb was brought over from Hogan Lovells in July to run point on the Russia investigation; Dowd, another member of the White House legal team, retired from Akin Gump Strauss Hauer & Feld in 2015.
Vogel later wrote, “I have always thought of overhearing conversations as an underappreciated journalistic tool.” The Washington Post commented, “It is every Washington reporter’s dream to sit down at a restaurant, overhear secret stuff, and get a scoop.”
Don’t let this happen to you!
Our take on this cautionary tale, of course, centers on Model Rule 1.6 — client confidentiality. We often have occasion to warn you to consider particular wrinkles in the rules that affect your particular jurisdiction. But not this time. In every U.S. jurisdiction, lawyers have an obligation not to disclose confidential information relating to the representation of a client without the client’s consent.
That duty covers a wide swath of information learned through the representation. It’s much broader than information that is protected by the evidentiary attorney client privilege.
And so many ordinary things you might do without thinking twice can jeopardize your client’s confidential information — as Cobb and Dowd have perhaps discovered. (Some have suggested that the incident was so blatant that it must have been intentional. But intentional or not, disclosure still requires client consent. The Times reported that, according to its sources, the disclosure prompted White House counsel Donald F. McGahn II to “sharply reprimand Mr. Cobb for his indiscretion.”)
The list could go on ad infinitum, but here are just a few examples of every-day things that can breach your duty of confidentiality:
- schmoozing about work while standing in line at Starbucks;
- doing client pitches;
- sharing war stories with friends over cocktails;
- talking on a cell phone in a public place;
- reading client documents on a laptop while sitting next to someone on a train or plane;
- forgetting documents on a restaurant table or in a cab;
- forwarding client-related emails to people outside your firm;
- sharing documents or forms created for a client with friends or other clients.
You must remember this…
Remember, confidential information also includes “disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person.” (Model Rule 1.6 cmt. 4.) In other words, just leaving out names doesn’t help, if someone can figure out who you are talking about.
And, as the President’s lawyers perhaps learned, when your client realizes that you have disclosed confidential information, “oops” may not be a complete excuse.
Bottom line: You might never work at the White House, but make it your default mode not to discuss client business outside of your office, and you won’t go wrong.