Confession: I’m a lawyer who’s married to a lawyer. If that’s your situation too, then you know some of the challenges — how life at home falls apart when you both have trials scheduled; the strain on the budget in those early days when you’re paying off two sets of law school loans; playing rock-paper-scissors to decide who takes the sick kid to the office with them.
More than pillow talk
Now, from my home state of Ohio’s Board of Professional Conduct, comes a reminder about another challenge: keeping your client’s confidential information confidential when you’re in a two-lawyer household. There is always the temptation to talk shop, to discuss at the dinner table details of exciting work you’re doing, or even to give your spouse a leg up by sharing some work product you’ve created for your client.
It’s that last one that got two lawyers in trouble, according to the complaint filed by the Buckeye State’s Office of Disciplinary Counsel. Two lawyers, both of whom practiced in the same area of law, first met at a trade association conference. One had been admitted in 2001, and the other in 2010. They dated (or “began a personal relationship,” as the complaint says), moved in together, and became engaged to be married. They continued to practice at separate firms.
As the complaint alleges, after the lawyers moved in together, they began exchanging information relating to their clients, but without authority to do so. More than a dozen times, said the complaint, one lawyer would forward to the other an e-mail from her client that requested a legal document — a contract, a waiver, or an opinion. The other lawyer would respond by forwarding an e-mail with his client that attached that type of document. The lawyers apparently didn’t scrub or redact the e-mails or the documents — rather, the exchanges revealed the identity of the clients and confidential communications that they had with their respective lawyers.
The complaint suggests that the lawyers were simply sharing the information and documents to help each other out at work. “More often than not,” alleged the complaint, one of the lawyers “ultimately completed” the other lawyer’s work “relative to her particular client.”
The lawyer’s disclosures, over the course of nearly two years, were discovered by their respective law firms.
Discipline by consent
The result of the disciplinary complaint: the lawyers each consented to discipline, acknowledging violations of Ohio’s version of Model Rule 1.6(a) (lawyer shall not reveal information relating to the representation of a client) and Ohio’s unique catch-all Rule 8.4(h) (lawyer shall not engage in “other conduct” that adversely reflects on lawyer’s fitness to practice law).
The lawyers also each agreed to a six-month suspension — but fully stayed on condition of no further misconduct. The relatively light penalty is partly based on the finding that no clients were harmed.
The Board adopted the disciplinary panel’s recommendation in June — but the case is not over yet. The Board’s recommendation now goes to the state supreme court, which can accept, or reject and modify it.
It’s human nature to want to give professional help to your nearest and dearest when you can. But there’s no question that sharing unredacted client documents and communications without consent can violate the duty of confidentiality — which is very broad, and extends to all information relating to the representation. It’s hard to see how or why a client would ever consent to the kind of sharing that went on here.
My friend Brian Faughnan has an interesting take on this case, over at his blog — namely that lawyers who overshare believe the risk of getting found out is quite low because of the marital privilege. He cautions, however, that in this digital age, things have a way of coming to light even without a spouse voluntarily providing information.
Bottom line: Even the kind of casual sharing that falls into the category of shop talk between co-habiting lawyers can be ethically improper. It’s hard to avoid that kind of temptation, but the necessity of doing so comes with the territory when your spouse or partner is not only a bed-fellow but a fellow member of the bar.