While this will come as a shock to some, writing a blawg requires a great deal of restraint. It’s awfully easy to use it as a mechanism to vent about one’s day to day feelings, whether misery or elation. Doing so often requires some explanation of the day’s activities, not to mention provides the reader with some clue as to why the writer is feeling that particular way.
While this may be fine for the basement pundit, it’s not acceptable for a lawyer. We cannot blawg about our cases, our clients. It’s that darned confidentiality thing, as an Illinois public defender found out the hard way. From Legal Profession Blog :
Between June 2007, and April 2008, Respondent wrote and published an Internet web log (“blog”) entitled “The Bardd (sic) Before the Bar – Irreverant (sic) Adventures in Life, Law, and Indigent Defense.” Approximately one-third of the blog was devoted to discussing Respondent’s work at the public defender’s office and her clients, and the remaining content of the blog concerned Respondent’s health issues and her photography and bird-watching hobbies. In the work-related blogs, Respondent referred to her clients by either their first name, a derivative of their first name, or by their jail identification number.The charges go on to note the details, as well as the PDs involvement in not correcting a client’s fraud before the court. It runs the gamut from stupid to incredibly stupid. Not having read the blog, I will venture a guess that it included plenty of non-stupid stuff as well, but that doesn’t do much to explain what happened here.
Much of the criticism of the public defender, who is named in the charges but will not be mentioned here, is for her inclusion of the first name of clients or their jail ID. How foolish could she be to provide such obvious identifying information, critics assert.
Nonsense. How foolish could she be to post about her clients at all. Even though names and ID numbers enable even the least connected reader to figure out who she’s talking about, mere descriptions of cases or scenarios would be fully adequate to apprise those who are familiar with her cases, like cops or prosecutors, to identify the people in her posts. How dare she expose her clients in any way whatsoever.
Confidentiality is not a joke. Confidentiality belongs to the client, not the lawyer. It is not up to us to decide whether disclosure matters, or what’s appropriate to disclose and what’s not. We are entrusted with information about human beings, and public discussion of these human beings carries huge risks of breach. There is a very clear way to avoid undermining the confidentiality of those who entrust us with their personal and private information: Don’t disclose it. Not at all. Not even a little bit.
People have occasionally questioned why I never write about my own cases or clients. This is why.
It’s not that I don’t have feelings about them, or great examples of points I make via the stories of others. I’ve got a ton of ’em. But they aren’t my stories to tell. No matter how strong the urge to let you know about the case I worked on today, I can’t. I won’t. Sure, I could change the names of the “innocent”, or fudge the details sufficiently to conceal the specifics from the unwary, but there is always the chance that my adversary will read the post, put two and two together and end up with 17. Today’s innocuous comments are tomorrow’s confessions. While perhaps extreme, why would I even conceivably take a risk with my client to provide a reader with a mildly curious anecdote. Not that I don’t appreciate my readers, but my duty to my client comes first. Way first.
That the “respondent” is a public defender may also be seen as an element of the problem here, as if PDs either have a lesser duty of confidentiality toward their clients, or just don’t care as much. I refuse to accept the latter, and the former is facially wrong. We are all lawyers and have precisely the same duty toward our clients. If there is a lack of personal connection based upon volume and limited communication, then there is only one answer. Get over it.
Blawging is fun. It can be informative. It’s a great way to spend a few minutes. But it is neither a justification for disclosing client confidences, nor a free pass for the ethically challenged. Don’t post about your clients or your cases. Even those of you who want to lie to the public to get business, fabricating false stories of great victories in case after case. It will come back to haunt you. It should come back to haunt you, and if you do post out of school, I hope it does.
Like you, I was stunned when I saw the stupidity of this lawyer blogger. (I suppose the lawyer title will not be hers for long.)
This is a perfect example of what not to do. In this case not only discussing the case, but revealing her clients’ lies made my jaw drop.
The problem becomes one of retroactivity. Afterward, it seems unbearably foolish, but what was running through her head as she typed out the words? I am hoping that people get the idea that they may not see the error until after it’s made, published for all the world to see, so don’t do anything even close to revealing confidences in the first place and you won’t have to grovel before the disciplinary board making up excuses for being a blithering idiot. As we are all painfully aware, the bell rung cannot be unrung. Don’t ring it.
Regarding the so-called sacred confidentiality spectrum, is it your opinion also that attorneys / lawyers refrain from & (Not) discuss a defendants case with him / her through the bars of a court room holding tank(approx. 4′ x 6′)in ear shot of a few other inmates? Thanks.
In that situation, you do what you have to do. If there was an opportunity to speak with a client in a more appropriate environment, such as the attorney visiting room at jail, but you’re left to do so in the holding cell because you didn’t want to spend the time, then the lawyer is at fault. That’s part of the burden of representing an incarcerated defendant. If it’s an initial arraignment and there was no other opportuntiy to speak with him, or there is brand new info that needs to be addressed, then the lawyer may have no choice.
But there’s always a way to speak with relative confidence, whether by whispering or very limited and careful use of language. Be as confidential as possible without compromising the defendant’s other rights and interests in the process.
I’ve wondered about this when reading autobiographies from the likes of F. Lee Bailey, Leslie Abrahamson, Roy Black, etc. It’s been a while but my recollection is that they include tons of details of their most famous cases. I find it hard to believe they got a release from every famous client. I think Stephen Jones even wrote a book critical of McVeigh but maybe he waited until after the execution so that the privilege had expired. Still, it seems a little sketchy.
Thank you, Sir. One can only hope that this valuable common sense approach is now being taught in every law school throughout the country. I guess with this ding dong and her 15 minutes of fame, there’ll be courses in Vanity.
Me too. While I don’t assume they were talking out of school, I can’t quite figure how they did it.