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Vital and Inevitable: The Decay of Client Confidentiality

Published in the Maryland Daily Record June 30, 2014

Despite the old rhyme about Lizzie Borden (of Fall River, Massachusetts) taking an axe and giving her father forty whacks, Ms. Borden was acquitted of her parents’ murders. Her lead lawyer, George Dexter Robinson, former governor of Massachusetts, began his representation, on October 4, 1892, by conducting a three-hour one-on-one interview with Ms. Borden in the Taunton jail. To this day, his notes of that interview remain locked up in a safe in his law firm, Robinson, Donovan, Madden & Barry, in Springfield.

Andrew Jackson Jennings, the Borden family lawyer, was also on the defense team. His notes, by contrast, passed into his grandson’s estate and thence, recently, into the hands of the Fall River Historical Society, where they have been eagerly inspected by history buffs trying to find out what really happened in those long-controversial murders.

A recent and intriguing piece in Litigation magazine[1] by Anne Klinefelter and Marc C. Laredo poses the question which outcome was the right one.

Reportedly, the Massachusetts Board of Bar Overseers takes the position that “[t]he duty to protect confidential information survives death in Massachusetts.” Given that Lizzie Borden died in 1927, that asserted duty has survived nearly nine decades in her case.

Massachusetts seems to represent the standard outlook. Attorney-client communications have been explicitly held to remain privileged after the client’s death in Arizona, Colorado, Indiana, Maryland, Missouri, North Carolina, Ohio, Rhode Island, South Carolina, and in the Supreme Court.[2] I am unaware of cases to the contrary.

The claims of history have been entirely overlooked in the formation of this consensus position, however, and the meaning of confidentiality cannot possibly be as absolute, nor confidentiality’s claims so pressing, in a digital era.

Let’s talk about history first. The importance of knowing the real story of what happened in the development of our species, our societies, and our families, is both practical and existential. The old saw that those who are ignorant of history are destined to repeat it establishes perhaps the most urgent facet of its practical importance. And there is no useless information. Victor Hugo said it well: if you call details small, you are wrong because “il n’y a ni petits faits dans l’humanité.” (There aren’t any small facts in humanity.)[3] And the facts a lawyer hears – particularly those made known in confidence – would likely loom large in anyone’s estimation, were they but known. Lawyers hear the unvarnished accounts, the testimony that gets ruled out on motions to suppress, the contradictions that are ironed out as witnesses are prepared, the secret histories underlying bequests, the angry comments the lawyer assures are never made because to do so would injure the deponent’s credibility, the employment history silenced by non-disparagement clauses and confidentiality agreements, and maybe most important the deliberations government lawyers keep hidden by pleading executive privilege. We lawyers are probably responsible for burying more important history than any other group.

And some of us are actually proud of this.

I’m not suggesting there is no social utility to the attorney-client privilege. The client certainly has a need to consult counsel in confidence. But what about when there is no client anymore? There is no one then to embarrass, no one to prosecute, potentially no one left whose ox could be gored. This will not always be the case; even after a generation or two, certain disclosures about parentage might seriously disrupt inheritances, open disputes about title to land – that sort of thing. But realistically, how could anyone now be hurt by us knowing what Lizzie Borden and George Dexter Robinson said to each other on October 4, 1892?

The no-ox-to-be-gored principle is why you can’t defame the dead – at least not civilly (though there are in many jurisdictions unenforced laws that make it criminal to do so).[4] You also can’t prosecute the dead, which deprives the shield of the privilege of much of its urgency once the potential defendants slip through the ultimate loophole.[5] Basically, when they’re gone, they’re gone for legal purposes – at least those unrelated to their property. (Their estates have to be distributed, and their rights of publicity live on. But claims personal to them vanish.)

This means that the dead exert a peculiar kind of mortmain (dead hand, literally and figuratively) on the speech of the living – and of their survivors. I would contend that this mortmain frustrates the demands of history, and needs to be rethought. Old government secret files are declassified after a certain period. Time capsules are opened. Archaeologists excavate old tombs. Yet our profession clings to the notion that the secrets we sit upon are so sacred they can never be disclosed. What makes us think we or our clients should be excepted from posthumous revelation? (If the law has a right to every man’s testimony, as the old saying went, does not history have a right to each generation’s knowledge and information?)

What makes us even think, in this day and age, that we are capable of keeping secrets? Surely we know by now that every e-mail and telephone communication with our clients is likely seized by some government agency. Surely we know that if our cellphones fall into the wrong hands, client confidences go with them (perhaps encrypted, perhaps locked, but probably not effectively so against a determined search). Surely we know that every call we make to the computer help desk ends up with the technician being given remote access to privileged data. Perhaps Mr. Robinson, in 1892, could commit his notes of Lizzie Borden’s client confidences to a few pages, discrete actual pieces of paper physically capable of being confined in a safe. Today’s lawyer’s documents start life as electronic entities capable of being everywhere and nowhere. Today’s lawyers regard it as malpractice not to back up their documents remotely, likely in a server farm owned and operated by some contractor out in the cloud whose name they do not know, and whose locations are closely-guarded secrets. What becomes of long-term confidentiality in an environment like that?

I write these words at home directly after having composed a confidential draft of a letter I shall share with a client tomorrow. The correspondence has been stored in a commercial cloud drive which I shall access from work to forward to the client – a cloud drive which, let me add, I first heard about in a recommendation from a bar association. Will I realistically be able to clean up all traces of these privileged communications when I retire? I’m quite certain I won’t. Some of those traces will be available to unauthorized parties in the future. But that is the way law is now practiced.

It is an extremely safe bet, then, that client confidences will be harder to preserve as we progress. And it is, I think, a safe bet as well that at some point the profession will come to a more nuanced notion of the lifespan of a client confidence, and embrace some kind of declassification protocol, if only to keep some kind of control on the ravages that technology has wrought on secrecy altogether. It can counteract the ravages that attorney-client confidentiality has wrought on history.