Lawyers Can Do More To Protect Attorney-Client Communications
Accidentally hitting 'reply all' on an individual email is merely the tip of the iceberg of all the ways a lawyer can fail to protect their clients' interests.
Every lawyer knows that attorney-client communications are sacrosanct and should be protected. For this reason, many lawyers ask third parties to leave a room if attorney-client communications are occurring or seek private settings to have a conversation with clients. However, in certain instances in my career I have witnessed lawyers being extremely careless about attorney-client communications, and attorneys should take additional steps to ensure that communications between clients and their counsel are protected.
Usually, the recklessness of a lawyer is the reason why adversaries and others might hear attorney-client communications. Perhaps the most egregious example of this was when I was at a deposition with dozens of lawyers involving a deponent who was very sick. The witness was unable to project his voice far, and since the room was large, the deponent wore a microphone hooked into a speaker so that everyone in the room could better hear the testimony.
At one point in the deposition, the deponent’s lawyer asked to take a break, and the lawyer and his client retreated into another room. However, the lawyer did not remove the microphone from his client or turn the speaker off! As a result, everyone at the deposition could clearly hear what the lawyer and his client were communicating. Even worse, it appeared that the lawyer was basically coaching his client to misrepresent certain things in the conversation that everyone could hear, which was extremely inappropriate. It was only after one of the other lawyers ran into the next room to stop the conversation that the incident ended, and, of course, the reckless lawyer tried to shake things off as if nothing had occurred. However, the negligence of this attorney not only gave the other lawyers insight into the deponent’s testimony, but exposed the lawyer to accusations that he was not acting appropriately.
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Sometimes, the disclosure of attorney-client communications does not occur in person but, rather, over email. This website and other news outlets routinely report mishaps involving individuals who accidentally hit “reply all” to an email chain. It is not uncommon for lawyers and their clients to all be on one email chain together, especially with transactional matters, because sometimes it is easier than having the lawyers play a game of “telephone” to convey points that the other side made.
In any case, one time I was working on a transactional matter when a stakeholder to a deal replied all to everyone instead of just the people that were on their side of the transaction. The email included some personal attacks on some people working on the deal and also included some strategic points that would be beneficial to the other side. To add insult to injury, a few more emails went out like this before the individuals involved discovered what happened and tried to fix the situation. This circumstance made it much more difficult to close the deal and gave the other side an advantage that they might not have had if the disclosure did not occur.
Of course, lawyers do sometimes have a responsibility to make it less likely that they will detect protected attorney-client communications. Whenever I am in court or some other closed space where clients are with their counsel, and sensitive communication may occur, I usually distance myself from any communications and make my presence known so that attorneys and clients do not inadvertently communicate something that I can hear. Even if this is not ethically required, trying not to overhear sensitive conversations may be considered a courtesy in the legal profession.
However, sometimes it is simply impossible to avoid attorneys and clients who are recklessly communicating in such a way that other parties to a lawsuit or transactional matter can hear the communications. Once attorney-client communications have been disclosed it is extremely difficult to unhear what was said and undo the disclosure so the parties are in the same place as they were before the disclosure. As a result, attorneys and clients could be more careful when communicating to ensure the smallest chance possible that their communications will be seen or heard by other parties to a matter.
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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothman.law.
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