We entrusted the job to our intern: what could go wrong?
Here is a story that should frighten all lawyers who employ non-lawyers to assist with various tasks in their practice, which is to say, every one of them. If you have a lawyer, or ever expect to hire one, maybe it should frighten you, too.
A young woman dumped documents containing private information from the clients of Ashley Bell, one of Gainesville, Georgia’s most respected attorneys, in a newspaper recycling bin at The Gainesville Times. The Times said that a majority of the documents remained in their original file folders, and no effort had been made to conceal the contents or redact sensitive information. The files included phone and Social Security numbers of former clients, information on juveniles and reports and evaluations conducted by the Department of Family and Children Services and Court Appointed Special Advocates regarding the physical and sexual abuse, which state law requires be kept confidential. From the Times:
“One file involved a years-long investigation into allegations of sexual abuse of four children, all under the age of 9 in 2004. Inside the file was a handwritten accusation signed by a relative, a log kept by a foster parent of the children’s sexualized behavior and a detailed psychotherapist’s report. Another file involved a 2007 investigation of a woman who allegedly binged on alcohol during her pregnancy, possibly resulting in her infant’s severely deformed leg. The file included the mother’s medical history, including documentation of a sexually transmitted infection and notes on a previous loss of custody of the woman’s two older children following allegations of sexual abuse.”
Also in the files: a former client’s W-2 form; a former client’s car title; copies of various personal checks written to one of Bell’s clients; criminal histories and personal medical records. The Times reviewed the files and properly determined that it needed to keep them safe until they could be properly destroyed, but didn’t hesitate to embarrass the lawyer by writing a story about his professional breach. The young woman who dumped the files was apparently a college intern who didn’t follow orders, still Bell violated two important ethics rules in the episode.
He, like all lawyers, is required to keep information he learns as a result of his representation of clients confidential, which means taking care that it, uh, doesn’t end up in a local newspaper’s recycling bin. The other requirement is articulated in Rule 5.3, which has become more crucial the more lawyers use paralegals, assistants, contractors, investigators and interns:
“With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Georgia Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action….”
Bell isn’t responsible for the conduct itself under the rule, but he is probably responsible for the reason it occurred: he didn’t properly train the intern to understand his duty, as a lawyer, to protect client confidences. How do I know this is true? Because almost all attorneys fail to make their non-lawyer assistants sufficiently aware of how crucial this duty is.
Bell’s firm has made a formal statement that its system had broken down because of the intern; Bell said that he had been ill, and not able to supply his usual careful supervision. Discipline from the bar is unlikely, and probably inappropriate, unless the bar wanted to send a particularly vivid warning about the possible consequences of inadequate supervision of non-lawyer assistants. Nobody doubts that Ashley Bell is a good, ethical and trustworthy lawyer, but in this instance, his clients’ trust was violated.
“This is something that’s never happened the whole time I’ve been practicing,” Bell told the Times. ” You can’t watch your employees every day. … You hope you can go on autopilot, but I guess sometimes the plane crashes.”
And the lesson to attorneys is: When client confidences are involved, don’t go on autopilot!
Ethics Alarms 
Thank you for subscribing to my blog, Jack. The thing I like about the Ethics Alarms blog is that you pose questions that aren’t widely seen, and a lot of people wouldn’t ask. Sometimes, people here even tell me I’m wrong. I get uncomfortable if too many people agree with me, too often. As for this post, I just have a technical point. What most people call “lawyers” are actually attorneys. There is a difference. An attorney serves a completely different function.
Black’s Law Dictionary:
(to) attorn : To deliver title and/or possession of property, into the hands of a third party.
An attorney serves the highest proprietary interest, and that is usually not you or me. A few years ago, I knew a lady who was in court quite frequently, and not of her doing. She was shocked for about 8 years, as I repeatedly told her what the judge, the prosecutor and her attorney would say, next.
The bottom line is that the Ethics Alarms blog belongs in the news feed in the header on my page.
I gave up on the lawyer/ attorney distinction long ago, whe I realized that 99% of those in the prfession used the word interchangably, as di most judges. I’m NOT giving up on which and that, imply and infer, or bring and take, however.
The lawyer/attorney distinction gets serious when they run into a State National who knows what they’re doing. There are a lot of Administrative Law magistrates impersonating judges. That’s a felony, punishable by 5 years in prison.
I thought lawyers and attorneys (if one must make that distinction) were in fact responsible for the training of non-legal assistants and ensuring their adherence to the particular jurisdiction’s rules of professional conduct. Why this particular lawyer/attorney hired a moron who probably tosses his own personal information in recycling as well, is the real problem: he sounds untrainable to me.
By the way, I’m pretty sure that the difference between a judge and a magistrate is pretty well known, and I’d like to know of one case in which a magistrate actually did impersonate a judge (and how exactly did he/she do that?), was found out, and aside from being disbarred also went to jail.
This is not one of my favorite posts… especially because so far we’ve just been playing with the old Merriam-Webster (or whatever). Boring.
This brings up another murky problem inherent in high-stakes, contentious divorces. Either side can (and does!) demand extensive discovery, always including highly sensitive financial information and often including extremely personal health information. While the attorneys may be careful to dispose of this paperwork in a responsible manner once the case is closed, the litigating parties may not. Sometimes this is done out of sheer ignorance, sometimes out of malice aforethought. In one case I am intimately familiar with, the parties have been in litigation for 10 years during and post divorce. The amount of discovery paperwork that has been delivered to each party would fill countless storage cabinets and includes bank records, DSS reports, IEP plans, tax documents, etc. The husband does not shred any of these documents, he simply throws them out with the trash when he’s done with them. The wife shreds everything she doesn’t file away under lock and key for possible future need. The husband’s attorneys have done nothing improper in allowing the husband to have his files and discovery materials. How does the wife protect her right to privacy and the privacy of the children’s records?
In two words, she can’t. Sharing proprietary information with someone who doesn’t have a professional obligation to protect its status risks this. For the husband to do as you describe is unethical, irresponsible and outrageous, but so would be his revealing any other intimate or sensitive aspect of their marriage.
Let’s say the husband in this case was an MD or an attorney and left old client/patient files at the marital home when he vacated it – then refused to take these files insisting the wife got the house and its contents and the files are part of the contents so they’re her problem. The wife has/had no professional interest in his business. If she is an ethical/responsible person she has everything shredded at her own personal time and expense. If she drops them off at the dump and they are discovered can she be held liable?
What about the ethics of the person who discovered all these files? Is he not ethically responsible for the proper handling of these papers, especially since he agreed to let the intern put them in his employer’s recycling dumpsters? I know that ethical newspaperman is an oxymoron, but come on. If that intern had been working for the Federal Reserve and was told to dispose of a trunk full of old money and he thought that meant dumping it in the nearest recycling bin, would it be finders keepers?
Two other things. The White Sox are on the south side, not the Cubs and I take offense from your snide comment about your normal schizophrenic with a closed head injury (although the voices in my head say that I am above average).
If the firm dumps the files, they are abandoned, and a newspaper has no obligations to protect a law firm’s clients. And the firm, as I read it, didn’t know what was being dumped…the natural assumption would be that the firm wasn’t tossing anything proprietary.
As to the North/South side—you know, I knew I was going to screw that up, and still did. I’m from Boston—we have no directional sense at all.
So if the intern working for the Fed dumps the $1,000,000,000 it the recycling bin, the bills are abandoned, and finders keepers applies?
Which rule book is finders keepers introduced as an ethical rule?
I didn’t ask if the newspaper had an “obligation” to protect a law firm’s clients, I asked whether the person who discovered the files had any ethical compunction to do the right thing, ethically speaking.
If people from Boston have no sense of direction, how do they all know to head south for the winter? And how do they find their way back?
And what about the “southies” I hear about in all those Matt Affleck movies? Aren’t they from some part of Boston? Probably the north side, those crazy Bostonians. Maybe you could use that giant Citgo sign as a reference point.
Valuables are presumed lost. Documents are presumed abandoned. You can keep a banana peel you find in the street, A wallet you have to turn in. Papers have no intrinsic value..if they are abandoned, they can be taken. Proprietary information on documents is another story. That’s why the paper flagged it and kept it safe. If they had published all of it, however, the law firm, not the paper, would have been accountable.
I never DID find my way back….