New York Personal Injury Law Blog » Attorney Ethics, Attorney-Client Privilege, Confidentiality

 

May 4th, 2015

Lawyers and the Press. Again

GellerLawGroupI hate to pull the stuffings out of this article from the New York Times about women lawyers trying to manage both family life and a solid law practice. It was a lovely, fluffy piece of lifestyle journalism.

The women at the Geller Law Firm, it seems, have based their practice around making sure that they don’t lose sight of the other important things in their life, also known as children.

To do this, they cut back on hours, or make them really flexible, work from home or temporary offices, and focus most of the practice on non-litigation matters such as trusts and wills and small business incorporations. And “[T]he partners limit their litigation business because court appearances and filing deadlines mean less control over their schedules.”

According to the piece:

the founding credo of which is family-friendliness and whose stance on office face time is best described as “militantly against.”

You know what? If they can figure out a way to make the model work, then more power to them. If a group of people, for example, only want to work 30 hours a week, and take home less pay and have fewer clients, no problem.

So long as the clients aren’t affected.

But the article needed a little color. Someone decided it would be nice to have an actual client involved in the cuddly, little piece.

The problem with including a client, of course, is the risk that something will be said about an actual piece of litigation, so you would expect something very benign, such as “I think they are awesome and have no problem with the limited hours and they always get back to me when I call and they are awesome, and I said awesome twice because I really, really think so.” You know, like that.

But that is not what happened, so this is where the stuffings get pulled from the sweet teddy bear of a feature piece.

This part just leaped off the page at me, as confidential communications were exposed in front of the Times reporter:

By 10 a.m. on that Wednesday in March, Ms. [Maria] Simon was seated in front of a client, formerly the president of a condominium association that was now suing him. (The client gave me permission to sit in on the meeting.)

Ms. Simon began to review each count of the civil complaint against him, MacBook open and legal pad at the ready. She had a litigator’s game face that was only occasionally undone by a wry smile she couldn’t quite suppress.

“I have to ask,” Ms. Simon said at one point. “Did you ever falsely represent yourself as an attorney?” The client explained that he had once told a local agency that he was appearing before it as an attorney but that he had meant it “in the British sense,” in that he had power of attorney. “You know you’re not supposed to say that, right?” Ms. Simon deadpanned.

“Yes, lesson learned,” he said.

For the non-lawyer readers, let me explain. What lawyers and clients say between themselves is privileged. But when a third party, unrelated to the law firm, comes into the room, the privilege evaporates. Gone. Up in smoke. At a deposition opposing counsel can ask about every single thing that was said in front of this other person.

Lawyers see this potential problem with some regularity, though not with reporters as the third wheel. Often a friend will accompany the client to the office. And when that happens, it’s the job of the lawyer to exchange pleasantries with these friends and explain to them what a privilege is, and why they can’t come into the conference room, and offer them coffee and a newspaper as they sit in the waiting room.

Why the lawyers at Geller decided it would be wise to have a confidential meeting in front of a reporter is utterly beyond me. And why the lawyer would ask in front of a reporter, “Did you ever falsely represent yourself as an attorney?” is simply bizarre.

Saying that this was not a well thought out interview from the lawyer’s perspective is, I think, a significant understatement.

This is not the first time I’ve written on this subject, where it seems that the desires of the lawyer for press have superseded the best interests of the client.

We saw this just a couple weeks ago with South Carolina attorney David Aylor, who was representing police officer Michael T. Slager, who happened to fire 8 shots toward the back of Walter Scott, killing him. Aylor didn’t just jump ship after seeing the video, but worse, told the world just hours later that he was jumping ship after seeing the video. Because apparently Aylor comes first, not the client.

And we saw this a few years back with Chicago criminal defense attorney Stuart Goldberg, who interviewed with Lindsay Lohan about representing her, and then opened up to People magazine about her “fragile” state. But confidential means confidential.

What should the Geller client expect? That his admissions in front of his lawyer may now be an issue, that everything said in front of the lawyer is no longer confidential, and that the lawyer might actually now be a witness to the admissions, and be unable to handle the matter due to a conflict.

That is one hell of a mess, if you ask me. And I don’t know how anyone can say it benefits the client.

This isn’t to say that all client interactions with the press are bad. But going into them, there must be long and thoughtful discussions about exactly what is fair game to speak about, and what isn’t, and how/why it helps the client.

I reached out yesterday by email to the lawyer involved and she did not yet get back to me.

 

10 thoughts on “Lawyers and the Press. Again

  1. I read that and thought the same thing. What made it more bizarre is that having the reporter listen to that conversation did not add anything to the central point of the article. Such an admission could significantly harm his case. There is no way any part of the conversation is now privileged. However, the client obviously consented, and so I don’t think the Gellar Firm can be faulted for malpractice or ethical breach.

    • However, the client obviously consented, and so I don’t think the Gellar Firm can be faulted for malpractice or ethical breach.

      The vast majority of clients don’t understand the ramifications. And given the conduct of counsel, it would appear she didn’t either.

      And she was the one obtaining the consent from the client?

  2. I reached out yesterday by email to the lawyer involved and she did not yet get back to me.
    She probably didn’t see the email before this went live, given her reduced-hours status. 🙂

    • She probably didn’t see the email before this went live, given her reduced-hours status.

      Ouch.

      As you might guess, I won’t hesitate to update if she should contact me. I don’t know what explanation she would have, but she certainly can offer one.

  3. @Alex – “did not add anything to the central point of the article”

    You have touched on a pet peeve of mine about modern journalism. Of course it added nothing to the point of the article. Yet not having it, or something like it, is unthinkable today. This is not just with lifestyle pieces. If mortgage rates go up, we will read about how this affects Bob and Betty in Scottsdale. It is assumed that the reader can’t handle abstraction. Worse, this filler is often put in the beginning. Back in the day, newspaper articles were written giving the important bits first and filling in the details later, so even if the reader didn’t turn to page A16 to see the rest of the piece he would get the gist of it. Nowadays we are given an exercise in skimming through the filler trying to find the substance. I also wonder how much time reporters waste tracking down Bob and Betty in Scottsdale, and if they din’t give the quotes he wants then finding Frank and Emily in Portsmouth. I have not seen any reports lately about how over-staffed news outfits are that they have to find make-work for their reporters. So why waste resources on empty blather.

    Oh, and also, get off my lawn!

    • @ Richard:

      I’ve noticed the same thing: Stories used to lead with the who, what, where, why and when. Now they lead too often with a story showing the human interest side.

  4. Question from a layman:

    If the client had already settled the lawsuit in which they were the defendant before the article was published, would that make a difference?

    • @Scott:

      If the client had already settled the lawsuit in which they were the defendant before the article was published, would that make a difference?

      It seems clear from the article that it was an active case at the time the reporter sat it on the meeting. It was, therefore, completely inappropriate in my opinion.

      Whether the act caused any damage is a separate question.

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  6. “I’ve noticed the same thing: Stories used to lead with the who, what, where, why and when. Now they lead too often with a story showing the human interest side.”

    Journalism is now about telling stories, narratives. Decide what the theme and the message is, then fit in convenient facts and quotes to support it. It is more important to tell people what to think about a given issue than to provide the facts and data they could use to figure it out themselves. Especially if that counters the desired narrative.