It has become more mainstream since the pandemic for lawyers to work remotely, whether appearing for a court scheduling conference by Zoom or taking a client call from an Uber. Although this type of work is more ubiquitous than in years past, there is often greater risk in trying to maintain the confidentiality of client information when on the road. For instance, holding work discussions in public places increases the risk that unintended third parties overhear a discussion or catch a glimpse of a sensitive document. Some people might assume that no one is really listening or paying attention to them, but there can be real risks if a lawyer is trying to have a confidential conversation somewhere that is not private.

Client confidentiality is usually broader than the attorney-client privilege. See Rule 1.6(a) of the California Rules of Professional Conduct. Comment [2] of Rule 1.6 states that client confidentiality applies to information a lawyer acquires, “whatever its source,” and includes matters protected by work product, privilege, ethical standards of confidentiality, or the law. These confidential matters can include client identity, business dealings, and other sensitive information—even if the information is otherwise publicly available.

Lawyers should try to be aware of their surroundings, take measures to make discussions more secure, and not let their guards down in situations that could pose a risk to confidential client information. Below are tips to minimize the risk of inadvertent disclosure of client secrets in four common public areas that lawyers often find themselves in when they travel.

Restaurants and Cafes

It is often nice to take a break from the office environment and meet clients or other attorneys over coffee or lunch. While these outings are a good way to develop rapport or break up the day, attorneys should not let their guards down in these places. It is important to be cautious about what strangers may be able to overhear from a nearby table. Situational awareness is important; lawyers can become so engrossed in conversation that they fail to realize that a nearby stranger is hanging onto every word. For restaurants near courthouses or law offices, there is an increased risk of a person with some knowledge of a client or matter (i.e., not a total stranger) accidentally overhearing conversations.

Some attorneys think they can speak vaguely without identifying specific people or company names. Attorneys should understand that this approach may not do enough to fulfill their ethical obligation to protect or maintain confidentiality. A better practice may be to avoid having the conversation altogether when others are within earshot, or to speak in a way to reduce the risk of being overheard.

Rideshares

If busy attorneys plan to take a work call in a cab on the way to the airport, they should try to take precautions. Although it may appear that the cab driver has no interest in a conversation, that assumption could be wrong—and could have dire consequences if the driver ends up recording the passengers inside their car. The law on the issue of what constitutes a reasonable expectation of privacy in public settings 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.

Being vigilant helps mitigate any inadvertent disclosure. One good step to take is to avoid taking working calls or “talking shop” with a colleague or client in public transportation. Such communications technically are in the presence of an unauthorized third party.

In the event that avoiding such conversations is not possible, there are measures one can take to make it more difficult to eavesdrop. Wearing headphones, rather than using a speakerphone, on a call can quickly protect your client and yourself. Headphones make it hard for the driver or anyone in the vehicle to overhear those on the call with you. Creating background noise is another effective measure to help avoid inadvertent disclosures. Some lawyers will ask the driver to turn on the radio or roll down the windows to impede the driver’s ability to completely hear the lawyer’s discussion, without impacting the quality of the lawyer’s call.

Airplanes

Airplanes and airports are busy and full of people. Such public places can greatly increase the risk of accidentally revealing sensitive information to a passerby. An airline passenger sitting beside an attorney might catch a glimpse of their laptop screen. Or, a passenger might overhear two attorneys sitting next to each other discussing a client matter. It is important for attorneys to remember that even though it may not be intentional, if a third party gains access to this sensitive information, the impacted client may conclude that it is the lawyer who created a situation where confidential information was accessible to others.

While reviewing work documents on a plane might be necessary to make use of built-in preparation time, there are steps attorneys can take to secure their work from nosy strangers. 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.

Attorneys should also be mindful that public Wi-Fi access can be unsecure and could compromise the security of emails and other information. This is true in airports as well as any other location with public Wi-Fi access. Using a secure hot spot from a cell phone or other private Internet access can help mitigate this risk. Also, implementing a VPN or a two-tiered security structure helps to reduce laptop vulnerability during air travel.

Courthouses

The presence of dozens of like-minded professionals at a courthouse may lure attorneys into thinking that their sensitive discussions are protected. It does appear as if everyone at a courthouse is focused on their own matters. This can cause attorneys to be looser about what they say out loud than they might otherwise be. 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 person or information being discussed. Even seasoned lawyers can find themselves in these situations, given the sheer number of people passing through the courthouse each day.

One measure that can be taken to protect client confidentiality in a courthouse is to find an empty hallway, or, even better, an empty conference room with closed doors to have confidential discussions. Often, courtrooms have small rooms available for such use. Some courts have legal libraries available to members of the bar or generally to the public. Many of those libraries include conference rooms which can be reserved in advance for additional privacy. Another tip is to be mindful of one’s surroundings and avoid having discussions about ongoing matters until back at the office or another private place.

Attorneys can help reduce their risk of inadvertent disclosure of confidential client secrets—and thus not break their client’s confidence in them—by implementing safeguards when they conduct remote work. These actions can help fulfill attorneys’ ethical obligations to their clients even when work takes them on the road or in the air.