Wednesday, 5 July 2017

Can You Keep a Secret?

How was work? What did you do today? Did you get any interesting files?

I stare at my parents blankly, as my mind races to find an acceptable answer that adequately balances my obligation to protect the firm’s sensitive information and the need to appease my family’s boundless interest in my budding legal career.

   ...discussing work
the office...

On one hand, I completely understand their curiosity. After all, they have been emotionally and financially invested in my journey to get called to the bar since the moment I picked up my first LSAT prep book.

Nonetheless, I am restricted by section 3.3-1 of the Law Society of Upper Canada’s Rules of Professional Conduct, which prohibits lawyers from discussing their files unless authorized under certain circumstances. The commentary extrapolates on this rule by advising against “shop talk” with others and suggesting that gossip is unbecoming of the legal profession, even if a client is not specifically identified during the conversation.

Fine, I would respond. I met with some lawyers. We discussed a file. I drafted some documents. It was clear from their defeated expressions that my answer left something to be desired.

So, I decided to meet with Theresa Hartley, a partner at McCague Borlack LLP, who graciously made time to speak with me about client confidentiality. With hopes of shining a small light on one of the grayest areas of law, I used my conversation with Theresa to create some helpful tips to keep in mind when discussing work outside the office:

Never mention a client by name.
It almost goes without saying that identifying your clients to others breaches confidentiality. Even if the client is a large, renowned corporation that presumably retains several other lawyers on all sorts of different matters, you should never name drop in a conversation outside of work.

Use General and Vague Descriptors when discussing your work.
You should never describe a client in such a way that they are identifiable. This guideline is also applicable to the fact patterns in your file, as describing a situation in enough detail can inadvertently reveal a client’s identity.

Be Discrete with your conversations.

You should never cite “it’s public record” as an excuse to openly discuss files with anyone. Clients appreciate our discretion when handling their cases. Also, be selective as to where your work-related conversations take place. If you are surrounded by many people (like in an elevator or the food court), the conversation should stop. This guideline should be kept in mind for those who choose to work while commuting on the bus or subway; you never know which of your fellow passengers are looking over your shoulder (and into your business!).

Firm-Client Confidentiality. 
It’s usually acceptable to discuss files with other co-workers at the firm. In fact, many lawyers will describe cases to their peers when developing a legal strategy. The privileged relationship typically exists between the client and the other legal professionals at the firm. However, there is one important caveat to keep in mind: when the file has a confidentiality screen. A screen is usually established when there are conflicts of interest or if there exists an incentive to keep the media at bay. If ever assigned to such a file, you should refrain from discussing it with those who do not have access.

Be Professional when conversing about encounters with opposing counsel.
It’s typically acceptable to tell others if you’ve met a certain “famous” (or infamous) lawyer, provided that not a single detail of the related file is mentioned. That said, be mindful of your stories about others. It’s unbecoming if you are criticizing counsel on a personal level (i.e. he’s a jerk; he got really cranky and started yelling), as opposed to politely commenting on their strategy (i.e. I felt that our client did not respond to his abrasiveness).
Remember – every situation is different. Trust your instincts, and use your judgment. As Theresa said to me, “if you’re unsure, ask!” Client confidentiality is fundamental to our profession and is not something to brush aside for the sake of a good “after work” story to tell family & friends.

Emilie-Anne P