This space has focused on a number of occasions on the difficulties for lawyers in dealing with certain forms of negative publicity. I won’t link to all of those past stories for a variety of reasons. (If you are stuck at home both because of the pandemic and winter weather and are looking for things to read, you can find them by searching for the “public relations” tag on this blog.) I will, however and for obvious reasons, offer a link to an article I had the opportunity to provide a number of quotes for that discusses the most recent ABA Ethics Opinion about the difficulties for lawyers in responding to a negative online review posted by a client. You can go read that piece here.
But lawyers can also be the harbingers of their own negative publicity online. The simplest way they can do that can also involve violating their obligations of confidentiality to their clients or former clients.
The opportunity to segue from the little bit of shameless self-publicity above to what I’m about to write below falls short of true hubris, I think, but also feels salient because one of the distinct memories I have of my interview with the reporter for the story linked above was demurring on her inquiries for me to offer an anecdote of a story where I actually helped a lawyer try to deal with negative online publicity because I couldn’t do so without violating my obligations of confidentiality.
An extremely high-profile version of one or more lawyers dunking on themselves occurred this week when the lawyers that made up the “team” that represented Donald Trump in his impeachment trial before the United States Senate appear to have cooperated with prominent peddlers of village gossip at The New York Times by speaking at length about the dysfunction among the attorneys for the former President.
The story certainly makes for a fascinating read and you can digest it here, but is a story that should never have been available because the lawyer who is repeatedly quoted in the piece, Schoen, had no business talking to the media about his representation of his client. (Lest it be unclear, he also would have had no business speaking to the media about any of his co-counsel’s representation of the client if he had left it at that because that still would have been information protected from disclosure by RPC 1.6.)
Now, I’m assuming that Schoen didn’t have permission from the client to have done so, but I feel I’m on pretty safe ground about that assumption.
Ironically, the only lawyer involved in the Senate representation that actually appears to respect his obligations of confidentiality is the lawyer who provided the worst substantive representation during the actual proceedings, Castor.
There are, of course, lots of side lessons that could be learned from all of the machinations involved and described in the article. But let’s just stick with a lesson that can have universal applicability.
RPC 1.6 – nearly everywhere – imposes an obligation of confidentiality on a lawyer as to any information related to the representation of a client. A lawyer can disclose such information if the client gives consent or if doing so is impliedly authorized in order to carry out the representation. The rule does not have any clear provision in it that would waive its requirements for publicly disclosed information. Rather, its commentary guidance indicates that it still applies even to matters of public record. Discussing internal quarrels after a representation is over will never fit the implied authorization requirement. Also, the same analysis that explains why none of the discretionary exceptions work to allow a lawyer to respond to a negative client review online applies pretty squarely to explain why “unhappy with public perception of my competence” isn’t a sufficient justification to speak publicly about work done for a client.