Over the last couple of years, like a lot of other people, I have gotten very into listening to podcasts on my way to and from work and on car trips. Most of what I spend my time listening to is in the comedic vein (MBMBAM, Judge John Hodgman, You Talking U2 to Me), but I listen to some other shows that don’t fall into that category, one of which is Radiolab. My 11-year old son really, really likes Radiolab, which helps a good bit too in terms of finding time to listen.
Radiolab is predominantly geared toward exploring scientific issues, but the latest episode of the podcast takes on the famous “Buried Bodies” case. That case serves often, especially, in legal ethics courses taught in law school as the starkest example of what lawyers have to be prepared to do in order to fulfill their ethical obligation of confidentiality to clients. It is certainly the height of absurdity for me to think I can drive any traffic to Radiolab, but if you don’t otherwise know how to get to it, you can download the episode from this link.
For those of us who have a law practice that involves representing and advising lawyers, or those who follow legal ethics issues generally, the only truly new aspect of the story in the podcast is getting to hear from the mother of one of the missing girls. I will not explicitly spoil that for anyone, but you probably don’t need many guesses to answer the question of what she thinks of the duty of confidentiality.
Tennessee,like many other jurisdictions, casts the net of lawyer-client confidentiality broadly to cover all “information relating to the representation of a client.” We differ from a number of other jurisdictions, however, in that we require lawyers to disclose confidential information “to prevent reasonably certain death or substantial bodily harm,” rather than merely permit a lawyer to make a disclosure for that purpose as the ABA Model Rules do. But, as Radiolab covers well, that kind of provision does not offer a lawyer a way out when the information relates not only to the representation of the client but to people who are already dead.
RPC 1.6 confidentiality is a concept that is difficult enough for some lawyers to grasp given how broadly the net is cast, and that it makes no explicit exception for information that has already been made public, so it is no surprise when regular people do not understand its full scope.
Yet, it doesn’t help when, in many respects, the duty is so frequently cast aside on mundane matters in that lawyers talk publicly and post publicly about aspects of their representation of clients undoubtedly without having gotten their client’s consent to do so. I think how confidentiality continues or changes over the next decade or so ought to be fascinating to watch given the differences that already exist between generations with respect to social media and how that impacts whether you do or do not share everything about your life online.