Lincoln Lawyer: Prevent unintended client confidentiality breaches while traveling

With today’s seemingly never-ending expectations to be accessible and on-call, lawyers can sometimes forget their surroundings in their efforts to be available and efficient. Problems can arise, though, when attorneys try to balance Zoom meetings, telephone calls, and even remote hearings from a public place like a coffee shop, rideshare vehicle, or on a flight.

Particularly, if attorneys let their guards down in public settings like these, it could pose a risk of revealing information that is otherwise protected by attorney-client confidentiality or privilege. For example, imagine a lawyer who invites a colleague attorney to a coffee shop for a work meeting. During that meeting, the attorney shares client documents from a laptop, but there are patrons sitting nearby who catch glimpses of the laptop screen and can overhear much of the attorneys’ conversation. There can be serious consequences for lawyers for even inadvertent disclosure of confidential client information.

Although lawyers generally are familiar with the protections of the attorney-client privilege, some are less familiar with the precise requirements of the California Rules of Professional Conduct on confidentiality. “A lawyer shall not reveal information protected from disclosure by Business and Professions Code 6068, subdivision (e)(1) unless the client gives informed consent[.]” Rule 1.6(a). Rule 1.6 contains confidentiality requirements that are typically broader than attorney-client privilege. See Comment [2] (applies to information a lawyer acquires, “whatever its source,” and includes matters protected by work product, privilege, ethical standards of confidentiality, or the law). This confidential information can include client identity, business dealings, and other sensitive information—even if it is otherwise publicly available. Attorneys should make efforts to ensure compliance with their ethical obligations by implementing safeguards that protect information which might otherwise be disclosed when speaking in public settings.

Below are four common public spaces where lawyers inadvertently or unintentionally may broadcast confidential or privileged information, and tips for reducing the risks that arise in those scenarios.

Rideshare

To avoid inadvertent disclosure or waiver in a cab or rideshare is to avoid taking working calls or “talking shop” with a colleague or client. Such communications technically are in the presence of an unauthorized third party. Sometimes, though, it is not possible to avoid a planned work discussion while in a cab or rideshare. Lawyers routinely may take phone calls while in transit or discuss matters in the back of a cab while on their way to a meeting.

Wearing headphones, rather than having the call on speaker, is a quick and effective way to protect your client and yourself. This can help minimize the risk that the entire conversation is overheard by the driver. It also helps the lawyer block out background noise—some lawyers will ask the driver to turn on the radio or crack the windows to block the driver’s ability to completely hear what the lawyer is discussing, without impacting the quality of the lawyer’s call.

As to potential camera footage documenting confidential discussions in a cab or public vehicle, there are gray issues surrounding the concept of a reasonable expectation of privacy, even in public settings. The law varies based on the jurisdiction. For instance, California’s Penal Code requires the consent of all parties to record a confidential communication. See Cal. Penal Code § 632.

Coffee Shops and Restaurants

Recently, there has been significant media coverage of reporters who have simply overheard attorneys at lunch—in Washington, D.C. and elsewhere—discussing high-profile representations as if they were alone in a conference room. The same risk for disclosure can occur even when speaking on a cell phone and traveling up or down an elevator. Many attorneys may simply assume other strangers have no interest in the conversation, but that can come with risk.

Some attorneys think they can speak in “code,” without identifying people or places. However, that approach may not do enough to protect or maintain confidentiality. A better practice is to avoid having the conversation altogether when others are within earshot. Attorneys may want to reconsider saving their conversations for the office, and enjoy the meal or coffee without work discussions – or being proactive about speaking in a way to reduce the risk of being overheard.

Airplanes

In order to maximize their time in the air, many attorneys engage in client work while traveling. However, a neighboring airline passenger might be able to view confidential information on a laptop screen or overhear a conversation if two attorneys are traveling together.

Reviewing documents on a plane is often a necessary part of work travel, but there are steps attorneys can take to protect their work from prying eyes. For example, most laptops are compatible with inexpensive and lightweight privacy screens. Attaching a privacy screen will allow the attorney to read the screen clearly, but blocks those at an angle from the laptop from viewing the screen. Also, implementing a VPN or a two-tiered security structure helps to reduce laptop vulnerability.

Courthouse

Courthouses are buzzing with lawyers and clients preparing for various appearances or hearings. Even where a lawyer surveys the room to confirm that no one they know is within earshot, it is still possible to be overheard by a lawyer on the matter who has not yet entered an appearance or by an individual with no connection to the matter who recognizes the topic of discussion.

Such situations occur quite frequently and to even the most seasoned lawyers. Dozens of like-minded professionals at a courthouse may lull attorneys into a false sense of security, where everyone seems focused on their own matters and attorneys think they can be less careful discussing confidential matters.

One measure that can be taken is to find an empty hallway, or, even better, an empty conference room with closed doors. Often, courtrooms have small rooms available for such use. Some courts even have libraries with conference rooms which can be occupied for periods of time for additional privacy. Another tip is to be mindful of one’s surroundings and avoid having discussions about ongoing matters until in a private place.

Implementing safeguards and planning ahead when work takes attorneys out on the road—or the air—are helpful ways for attorneys to reduce their risk of inadvertent disclosure of confidential or privileged information. By taking extra steps to help ensure confidences remain confidential in public places, attorneys are reducing their own risk—and the likelihood of a client who is unhappy that their confidences have become public.