Eric Turkewitz, on his New York Personal Injury Law blog, properly and pointedly flags an outrageous instance of a lawyer running to the press with information the professional ethics rules governing lawyers say that he must keep confidential absent permission to reveal them.
Stuart Goldberg, a Chicago criminal lawyer, was consulted by former child actress-turned-celebrity-bad-girl-turned-prisoner Lindsay Lohan as she sought new counsel to help her with her long-running legal woes. Lohan decided to pay her legal bills to someone else, and it was the first smart move Lindsay has made in a long, long time. Goldberg demonstrated his trustworthiness by dashing over to People Magazine and blabbing about his impressions of Lohan during their meeting as well as the content of their discussion.
He said Lohan is “a fragile lost child” who “just doesn’t get it” and who “didn’t seem to understand the urgency and gravity of the situation.” He said he was concerned that the actress “was in a dangerous state.” When he suggested to Lohan that it would be healthy for her to move out of Los Angeles, Goldberg told People, she rejected the idea.
“She was like Teflon to that comment. It just slid right off her. She seemed to have some inner deep sadness that was her fate.”
The communications from a potential client to a potential lawyer for that client in a pre-engagement meeting are confidential, as confidential as the communications from an actual client. The American Bar Association set out to emphasize and formalize this long-standing principle when it adopted Model Rule of Professional Conduct 1.18, which says in part:
Duties To Prospective Client
(a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.
“Not use or reveal.” Seems pretty clear to me. What part of that doesn’t Goldberg understand?
Maybe it’s this: most lawyers seldom read the Rules unless something specific sends them to their rule book. This particular rule wasn’t adopted by the Illinois Bar, but that’s probably because the Bar knows there isn’t anything new about the prohibition against lawyers revealing or using information they learn in consultations with potential clients. It is a universally recognized principle based on professionalism, fairness and trust; unlike some of the ethics rules, it is a no-brainer. Of course you have to keep those confidences. It is especially obvious in criminal law:
” I killed my wife. Can I retain you?”
“Sorry, no time for another murder case. Now, please excuse me while I call the police.”
Or, in Goldberg’s case, People Magazine.
Goldberg is hardly alone. Many lawyers, some of them quite well-respected, have crossed the confidentiality line when talking about their celebrity or high-profile clients in the press or on television. Goldberg probably thinks that dishing about a potential client who turned him down is less unethical than spilling confidences about current clients. Or that since Lohan’s whole sad train wreck of a life is chronicled in nauseating detail by gossip mags and paparazzi, she has no confidences.
If he believes either of these things, he’s wrong.
What Goldberg needs to do is review the ethics rules, especially those relating to protecting the confidences of clients, former clients, and almost-clients. What some state bar association needs to do is discipline a well-known lawyer for doing what Goldberg did. That will send the message that celebrities have a right to have their confidences protected, just like the rest of us. It may even make some lawyers read their ethics rules.