. . . and remembering the duty
to preserve the client's secrets

In today's flurry of techno-birthing, it is imperative that we honor our customers

by Martin Dean

I hear so much about new technology, new techniques, new hardware and new software that is "simple, user-friendly and made by lawyers for lawyers" that it's starting to make even me, an admitted technology junkie, forget that we're here to serve clients.

In this flurry of techno-birthing, technology is supposedly not the focus of our law practices. But we seem to be unable to often resist its siren song.

One thing I do remember in all this noise is the requirement of Business & Professions Code §6068(e), "It is the duty of an attorney to . . . maintain inviolate the confidence, and at every peril to himself to preserve the secrets of his or her client."

To reinforce the importance of these duties in our technology use, I've developed some guidelines that you may want to pass around the office.

Not only you

Don't think it's just you who has to keep confidences: I was visiting a law office not long ago and I'd been asked to sit for a moment in the waiting room. While there, the receptionist went for coffee, and I was left alone.

Immediately, the fax machine at the reception desk started to buzz, and a stream of paper started pouring out.

Curious, I peeked over the desk to see what was happening and saw, much to my astonishment, a copy of what appeared to be a private memo from a client called something like "How I want You To Try My Case." Do you keep your fax in a public area?

Last month I was in a downtown coffee shop for lunch and at the booth next to mine were obviously several employees of a large local law firm. Discussing baseball or politics? Not a chance. No, they were discussing the chances that a large client of the firm had of winning a lawsuit.

Lurid details

The discussion included a rather lurid tale of clients who were withholding documents in production and the "disappearance" of an important witness. Do you have a written office policy regarding such public discussions?

One out of every seven business telephone numbers is a fax!

An astonishing fact, but when you calculate the risks that you run with "autodial" on your fax, the chances you take with your clients' "confidences" become astronomical.

Fatal error

You've heard the story of the firm that faxed a last-minute memo to its client regarding trial strategy, only to find that the fax clerk had pushed the wrong autodial button, and sent it you know where . . . that's right, to the other side. Never put the opposing party on your autodial directory!

I've been developing and changing my fax cover sheet for a number of years. Because of the high probability that someone (including me) will misdial and send a fax to the wrong place, I've added a check box to the page that says:

"If this box is checked, the following confidentiality statement applies."

Why? Because more than 60 percent of the faxes your office sends are not confidential, yet you probably claim the confidentiality privilege for everything.

Have you waived that privilege by indiscriminately claiming it? Why take the chance?