Sinking More Ships

In response to yesterday's post, Windypundit (always one to ask the thought provoking questions), asks:
You never ever know what slight little off-hand remark could leave someone you thought was your friend running to call a reporter.

Or to post a blog entry.

I don't understand. Why can't you discuss cases with friends? Or on your blog? (Well, you can't to preserve your own anonymity, but what about other lawyers?) I see lawyers talking to the press all the time.

I had assumed the limit was client confidentiality, but you folks are talking about concealing things like motions or even the names of your clients. I thought that stuff was all part of the public record. Why can't you discuss non-privileged matters?

No, I think the difference here is between a lawyer doing it (and considering the strategy involved) and an intern doing it. If I, as an attorney, want to make a statement to the press, I first weigh exactly what I could/would say, and all of the possible consequences of each possible statement, rather than saying something off the cuff. But it would be absolutely unacceptable for my intern to make a statement to the press (either directly or indirectly) - they have no idea of what the consequences involved might be.

I hesitated from putting this in the original post... but we had an intern 2 summers ago who posted about a very high profile case on his blog. He didn't say the name of the client, but it was a high profile enough case that saying, "a guy who killed the kids at a day care center" for example, was enough for anyone in the city to know what he was talking about. He also blogged things like, "now the client is pretending to be crazy..." It was a total fuck-up by that intern. And a fuck-up by the attorney if she never had a conversation about confidentiality with her intern.

The point is, there are times you reveal things, there are times you don't. But that's for the lawyer (not the intern) to decide.

Now, as far as telling your friends about a case, I think you could say, "Yes, I'm working on the Stephanie Smith case." (It is kind of public record. Although, really, who the intern is isn't public record. But you're a PD intern, she's a PD client, it's ok.) But when your friends say, "Oooh, what did she do?" you're left to decide whether you can tell them what the police say she did (public record - even though you may believe it's false) or what she tells me she did (privileged).

In the alternative, if you don't say her name, you can probably say, "I'm working on a case where the client is charged with having marijuana, but she says the cops planted it on her..." (Again, being careful of the "high profile" exception if saying just that would allow anyone to put the name of the client with the facts you just told them.)

And finally, the biggest reason why you don't talk about things even though they are public record and you "can," is because you don't want to smear your client by making things more public than they are. Maybe the Stephanie Smith arrest was real low profile - a tiny bit of marijuana in her pocket, and the judge is going to dismiss it, and no one will ever know unless they do a search of the courthouse records. You tell your friend, who tells her friend, who tells Stephanie's mom or Stephanie's boss. Maybe you didn't break any rules, but you did a real disservice to your client - why? If it was just because you want to gossip a little, it wasn't worth it.

1 comment:

  1. this is my question for you:
    when a criminal def is represented by the public defenders office can she bring in to the office another attorney WITHOOUT the consent of the defendant THE ATTORNEY WORKS for the client, (farretta -v- calif 1975) it is the assistant of counsel that is found in the 6th amend.
    is this NOT a breach of ethics such as confidentiality attorney client privilege etc. i am seriously thinking about taking legal action against this PD for legal malpractice for violition of this privilege
    WHAT DO U THINK ?
    daniel
    salina kansas

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