“I keep secrets for a living.” That’s a perfectly sound (albeit incomplete) job description for a lawyer. Maintaining client confidence is a core component of a lawyer’s duty. Yet, time after time, lawyers stumble on this basic requirement, with unpersuasive excuses about one too many drinks or a misguided belief that some news is just too good not to share with a close friend. Further, even those lawyers who would never think about intentionally revealing a client secret may do so inadvertently. How many supposedly private communications have been overheard in a restaurant, an airplane, or the Acela.
Of course, lawyers need to be cautious about how we transact our business in public, but what about in a lawyer’s own offices? If you remember the old Perry Mason series (1957-66), Perry had this well thought out. Perry’s office had a private door, so his clients could come and go without being seen by a nosey interloper in reception. Indeed, as one fan mapped out, Perry’s office suite had 11 separate doors:
What if Perry decided to economize, and share his office space with another lawyer or perhaps the Paul Drake Detective Agency? Shared space presents a number of risks. One ethics opinion notes that confidentiality and conflict of interest issues abound, including “access to legal files by non-law practice personnel, lack of privacy due to the partially enclosed cubicles, and the inadvertent publication of privileged information,” which might impact a claim of privilege. The opinion continues: “All are real concerns which must be addressed, particularly in light of the lawyer’s responsibility under Rule 5.3(b) to take reasonable efforts to ensure that the conduct of a non-lawyer assistant is compatible with the professional obligations of the lawyer.” Absent shared personnel, another ethics opinion concludes that such an arrangement could be permissible where “the businesses are segregated, client confidences are protected, and public communications about each business entity are clear and do not create unjustified expectations about the results which can be achieved.”
Here’s another concern. Perry could close his many doors and have a private phone call. As noted in this article, confidentiality in close quarters is paramount: “Make sure your verbal communications with clients are private. This means that you must have a separate office with a door; it also might mean closing your door when you’re meeting with a client or talking on the phone.” If you don’t have doors, or a private area, how can you comply?
And what if your office looks less like Perry’s, and more like this:
For some time now, lawyers have been working in cubes, but even where a single firm or law department follows an open plan design (even without sharing space with outsiders), there are risks that must be managed. For example, sufficient closed door conference space should be allowed for private meetings and phone calls. Policies and procedures should be developed so as to ensure that visitors and others don’t have improper access to confidential information during the day. And, after hours, there should be mechanisms so as to ensure confidential information is put away and protected.