Garten: A lawyer must not break confidences

In a light-hearted social setting several years ago, a good friend handed me a dollar bill, telling me, in jest, that he was paying me as a lawyer, so he could tell me a funny and embarrassing story, in confidence, about one of our mutual friends.  

All jesting aside, a lawyer’s duty of confidentiality with respect to client communication is a sacred one that is not conditioned upon payment.  

Instead, a lawyer is ethically bound to hold in confidence any information received within the context of a person seeking legitimate legal advice from an attorney.

And while this professional ethical obligation would probably not apply to a situation where a friend wants to tell an embarrassing, lighthearted tale on another friend during a social setting, even if he thrusts a dollar bill into my hand, it was a cute gesture.

The duty of confidentiality does extend, however, to the situation where a potential client consults with a lawyer and the lawyer declines to accept the representation, or where a person seeks basic legal advice from a lawyer and no formal course of representation follows.  This is true regardless of whether  there is payment for the consultation or advice.

This duty also extends to information relating the representation that does not necessarily come directly from communication with the client, and it continues to bind the lawyer to confidentiality after the representation is concluded.

This is a good rule, so that those who engage an attorney in a professional role can do so with the confidence that they may speak freely without concern for irresponsible disclosure.

There are some limited exceptions to this rule, such as permitting an attorney to disclose information to further the interests of the client.

This exception would apply to a situation where a lawyer might disclose information relating to his representation in a letter to a hospital seeking medical records, or in interviewing potential witnesses.

Another exception is where a client sues a lawyer.  Then, the lawyer may disclose matters relating to the representation in defense of himself.

But in my opinion there is no professional justification for holding a press conference to trash a former client, and tell the world that that is why a lawyer is terminating his representation of him.

This, it seems, is exactly what the now-former lawyers for accused Florida vigilante killer George Zimmerman did when they announced publicly last week that the representation was terminated, that Zimmerman had been acting erratically, was out of control,  had violated advice they had given him, and that they had lost track of his whereabouts.

What the heck were they thinking?

Or, as New York University Law School Professor Stephen Gillers quite pointedly noted in Slate magazine: “Jaw dropping. Literally. I struggle to find the appropriate adjectives to describe their behavior. The clip will be useful in legal ethics classes under the heading ‘HOW NEVER TO BEHAVE.’”

What really bothers me about this is that when some publicity seeking lawyers in Florida hold a press conference to trash a high profile client, it undermines the profession as a whole, and the confidence of people everywhere that they should be able to trust their lawyer to hold their privileged information in the esteemed condition of confidence that is appropriate.

However, as I consider the universal level of professionalism and integrity of my colleagues practicing law in this area, I truly believe that it would never happen here.