Nonlawyers seem to think corruption is the biggest risk to confidentiality. It’s not. Lawyers are keenly aware of how their economic fortunes depend on not betraying clients. More importantly, the people that would bribe a lawyer for information tend to be other lawyers. No lawyer wants to be known as loose lipped among other lawyers.
Lawyers see the biggest risk to confidentiality as a lack of education and instinct. The education side of things is largely handled during law school and bar preparation, and then finally during onboarding, usually the first job someone gets out of law school. Lawyers learn the theory and then on the job they learn to develop “ethics antennae” that alert them to when they need to take a step back, think a bit, and maybe look up some rules.
The biggest risk to confidentiality is actually people’s love of stories. We all love telling and listening to them. It’s here that lawyers, even as they consciously try to respect confidentiality, once in a while break the spirit of its strictures.
People tell stories for a variety of reasons. They might want to throw something over to a colleague for reactions, ideas, feedback, or emotional support. They might want to make someone feel better, give food for thought, or get a laugh. They might want to look smart, tough, cunning, or wise.
This kind of break with confidentiality produces what we can label impressions and rumors. Lawyers like anyone love to read tea leaves and chit chat so these are perceived to be valuable. A story modified to satisfy confidentiality might give a better idea of how opposing counsel thinks or how a client might behave.
This risk applies to other professions. The principle is general. But I haven’t been an accountant or a doctor for example so I won’t focus on other industries.
Lawyers are credentialed people and have a grip on language that many do not. That can breed a kind of arrogance about the relevant area of real-world knowledge. This too is a general problem, one that people who become verbally skilled suffer from, where they mistake verbal ability for ability with the things the words gesture toward.
The instinctive default for lawyers when they’re mincing words is plausible deniability. You can reliably know whether you have it or not. It’s a skill that any heavy verbal can obtain, and has to, in order to be a white collar.
The paradox of confidentiality is the situations where it is needed most also tend to be the most interesting, story-tellable situations. There’s no getting around this. We’re inclined to talk about the juiciest events and lawyers are either fighting over something valuable or helping protect transactions worth protecting.
This is very unfortunate because the better the story, the harder it is to duplicate, the less common it is, and the easier it is to guess the actual situation. It’s fascinating how much people can guess from modified stories. They can often figure out the matter and the people involved.
There are only so many high-profile mergers; only so many clients who are demanding and sophisticated; only so many people in a specific industry.
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