Lawyers and other legal professionals are required to maintain client confidences as part of their jobs. In addition, lawyers and staff often need to review materials that have sensitive financial and personal information, since legal professionals are often expected to handle personal and confidential matters on behalf of their clients. I have heard of some workplaces where file cabinets are locked every night, and some materials which are under seal are kept in even more secure locations. Since lawyers and staff are working remotely more than ever before, there may be a desire to bring confidential materials home so that they can be consulted while working virtually. However, because accidents happen to the best of us, lawyers and staff should avoid bringing sensitive client materials home whenever possible.
I have heard horror stories of lawyers who have lost sensitive materials because they left them in court or in some other public place. Years ago, I used to work in a unique mass torts matter which involved similar issues and numerous lawsuits related to this issue. I heard a story about how a bunch of lawyers were in court one day either because of a court conference or because they were arguing a motion in this mass tort matter.
After plaintiffs’ counsel left the courtroom, one of the defense attorneys noticed that the plaintiffs’ lawyer left materials behind. One of the documents was a proprietary memorandum related to the mass torts cases. Of course, there are ethical and legal consequences for discovering information that was erroneously disclosed, and I hope that the lawyers who found the materials complied with all of the laws that were implicated by the disclosure. In any event, it is difficult to “unsee” materials that have already been read, so even if remedial measures were taken by all of the parties, the disclosure may have disadvantaged the client and impacted the disclosing lawyer’s professional standing.
Another time, I heard about a lawyer who liked to take case materials on public transportation. This was toward the beginning of my legal careers, so fewer files might have been digitized at the time, but this lawyer evidently liked to consult hard copies of materials. In any event, one time while riding the subway, this lawyer left a Redweld full of case materials on the train and realized the mistake too late to retrieve the items.
It took an absolutely insane turn of events for this lawyer to get the materials back, and this lawyer was super lucky that someone had located the materials and offered to return the documents. But there is a very real possibility that those documents could have been lost forever, and any work product that the lawyer had could be gone, requiring the attorney to start from scratch on various projects. In a worst-case scenario, the materials could have ended up in the wrong hands, and any information could have been exploited by adversaries or people on the street who could have used the personal identifying information in the materials to perform bad acts.
One time, I had a scare myself about bringing confidential information outside the office. As a first-year associate at a Biglaw firm, I worked on a number of cases that were in the news. On one such matter, I was assigned to perform a relatively difficult document review project. This was about a decade ago when document review was still a widespread thing and artificial intelligence hadn’t really swept in to take many lawyers out of this process. In any event, partners and senior associates complied binders of information related to the document review to make it easier for us to know all of the relevant names and dates.
Since I wanted to perform some of the document review from home, I decided to take the binder home on a few occasions so I could consult it while working remotely. One afternoon, I discovered that I misplaced this binder! My mind began to spin, and I wondered if I could have left it on the train on my way to or from work. I thought my legal career might be over if one of my adversaries got their hands on the binder since it contained juicy information that would help their case, and the matter was well-known, so someone might find it and know how to connect the binder to our adversaries.
Fortunately for me, I eventually discovered that I placed the binder on the highest shelf of another associate’s office! I am 6’9’’, and I regularly place things higher than most people, and then most people can’t even see the item I placed. From that point forward, I resolved that I would only take confidential materials home with me if absolutely necessary.
As this and other stories demonstrate, more lawyers should think twice about taking confidential documents out of an office. Accidents with sensitive information are commonplace, and lawyers should try to minimize the potential for such incidents to occur.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at firstname.lastname@example.org.