Many attorneys rely on rideshare companies to get them to meetings, the airport or for other job functions. Recently, some rideshare companies have initiated audio and video recording programs allowing drivers to record video and/or audio during all trips. Rideshare companies indicate that recording driver and passenger will protect them both.   

But what about those circumstances when an attorney engages in an off-the-cuff conversation with a colleague regarding a client confidential matter in the back of a rideshare vehicle, which is then recorded by the driver? Could opposing counsel subpoena the footage? Could the driver go to the media?

Sometimes attorneys let their guards down in situations that could pose a risk to attorney-client confidentiality or privilege. Although lawyers generally are familiar with the protections of the attorney-client privilege, lawyers are often less familiar with the precise requirements of Rule 1.6 of the ABA Model Rules of Professional Conduct, which contains confidentiality requirements that are typically broader than the privilege. Indeed, under Rule 1.6, confidential information can include client identity, business information and other sensitive information—even if it is otherwise publicly available, as discussed in ABA Formal Opinions 479 and 480. And Rule 1.6 calls on lawyers to maintain in confidence all information gained in the professional relationship with a client, even after the client-lawyer relationship has terminated, unless the client gives informed consent or the disclosure is impliedly authorized. 

With today’s seemingly never-ending expectations to be available and on-call, lawyers can sometimes forget their surroundings in their efforts to be efficient. Below are four common public spaces where lawyers inadvertently or unintentionally broadcast confidential/privileged information and tips for reducing the risks that arise in those scenarios.

Elevator

For most attorneys, each day includes at least two rides in the elevator: one going into the office and one leaving the office. It’s not hard to imagine being on an elevator with a colleague discussing a case. When the elevator stops on another floor and a stranger gets on, did you stop your conversation? Many attorneys may simply assume that the stranger on the car has no interest in the conversation, but that can come with risk, especially given that the legal community can be quite small.

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.

Rideshare/Cab/Car Service

As noted above, because many attorneys are overscheduled, they may routinely take phone calls while in transit or discuss matters in the back of a cab while on their way to a meeting. Such communications are technically in the presence of an unauthorized third party.

Sometimes it is not feasible to implement a blanket prohibition on phone calls or discussions about client work while in a cab or rideshare. However, any calls can be handled while wearing headphones, rather than on speakerphone. This can help minimize the risk that the entire conversation can be overheard by the driver. It also helps the lawyer block out background noise—so some lawyers will ask the driver to turn on the radio and/or crack the windows to block the driver’s ability to completely hear what the lawyer is discussing on the call, without impacting the quality of the lawyer’s call.

Courthouse

Courthouses are often bustling with activity. Dozens of like-minded professionals are all in a small space, reviewing documents and preparing for court. Attorneys may feel lulled into a false sense of security—everyone is focused on their own business, so attorneys may be less careful about discussing confidential information than they otherwise would be. And like the above scenarios, when urgent matters must be addressed, attorneys may not have a choice about when and where to address them.

It is easy to imagine sitting with your colleague near the courtroom, discussing strategy for the upcoming hearing or your personal feelings about opposing counsel. You might even look around to make sure that you don’t recognize anyone within earshot before having your discussion. But it is easy to be overheard by another lawyer who is on the matter but has not yet entered an appearance, or even an attorney with no connection to the matter who knows your opposing counsel and recognizes the name. 

Not surprisingly, such situations occur quite frequently and to even the most seasoned lawyers. Recently, there has been significant media coverage of reporters who have simply overheard attorneys at lunch—in Washington, DC, and elsewhere—discussing high-profile representations as if they were alone in a conference room. Like the other scenarios above, it is important to be mindful of your surroundings and avoid having discussions about ongoing matters until you can find an empty hallway or jury room.

Airplanes

As the practice of law becomes increasingly national—and even international—in scope, air travel has become a routine part of attorney life. In order to maximize their time in the air, many attorneys engage in client work while traveling. However, a seatmate on an airplane could get glimpses into a client’s confidential information.

Reviewing pleadings, draft briefs or correspondence on a plane is often a necessary part of work travel, but there are steps attorneys can take to protect the confidential aspect of their work from prying eyes. For example, most laptops are compatible with an inexpensive, thin privacy shield that can attach to the computer screen. The privacy screen will allow the attorney to read everything on the screen clearly, but will block the views of those peeking from an angle. Also, use of a VPN or a two-tiered security structure helps to reduce the vulnerability of laptops.

By taking extra steps to help ensure that 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.