The notion that “anywhere can be an office” rang true during the pandemic and, for some, has led to a more flexible approach to working environments. But while the definition of “office” may be looser, an attorney’s ethical obligations are not. Attorneys should remain extra vigilant with respect to their duty to maintain confidentiality when discussing work in public places.

Lawyers generally understand the protections of the attorney-client privilege, but some fail to appreciate that the duty of confidentiality is broader. Rule 1.6 of the California Rules of Professional Conduct and Business and Profession Code §6068, subdivision (e)(1) set forth the duty of attorneys “[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” That duty is subject to very limited exceptions.

Attorneys are thus expected to closely guard client confidential information even after the representation has terminated, unless the client gives informed consent. As discussed in ABA Formal Opinion 479, the scope of information considered “confidential” can include client identity, business information and other sensitive information—even if it is otherwise publicly available.

Given the seriousness of this duty, having a call with the client while lounging at the hotel pool may not be a great idea. Another setting where lawyers may be inclined to discuss confidential matters is in the backseat of a rideshare to or from the airport, meetings or other work functions. Whether discussing confidential matters with a colleague in the car or on the phone, there may be a risk that the driver or someone else is listening.

Indeed, some rideshare companies have initiated 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 it also raises questions. For example, could opposing counsel subpoena the footage where confidential information was disclosed? Could the driver go to the media?

While lawyers are working anywhere and everywhere now, they can sometimes forget their surroundings in their efforts to be efficient. Below are four common public spaces where lawyers inadvertently or unintentionally broadcast confidential or privileged information and tips for reducing the risks that arise in those scenarios.

In the Elevator

Although a law firm’s office is a safe space for communications, attorneys still need to get to the office. For most, that includes at least two rides in the elevator each day, where attorneys often run into colleagues and may start discussing their latest case. When the elevator stops on another floor and a stranger gets on, do 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.

Rideshares, Taxis or Other Car Service

As noted above, attorneys 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.

It may not be feasible or necessary to implement a blanket prohibition on discussions about client work while in a cab or rideshare. But to reduce risk, any calls, for example, 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 or recorded.

Before or After Court Appearances

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. There have been highly-publicized incidents recently—in Washington, D.C., and elsewhere—where attorneys were overheard discussing high-profile representations at a restaurant 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. 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.

No one would walk up to a stranger and disclose client confidential information. Attorneys who fail to consider their surroundings when working may be doing just that. Taking extra precaution when working in public places reduces the risk of ethical violations and unhappy clients.