How I Lie to You

You may have noticed that I relay many stories about clients, and it’s amusing how many people react with what-looks-like earnest alarm upon encountering this. The two things readers need to know are yes, I am very well-aware of the rules governing attorney-client confidentiality, and yes, many many many steps have been taken to preserve said confidentiality. Keeping secrets is the paramount obligation an attorney has, and it’s enforced through disciplinary action up to and including permanent disbarment. Most importantly of all, spilling the beans can seriously fuck over clients.

That terse declaration is the most transparent I’ll ever be on this issue, because giving away details on how I may obfuscate details would undermine said obfuscation. Common techniques among secret keepers who write about confidential information (lawyers, psychiatrists, former Mossad agents, etc.) include changing identifiable details like names and other traits, combining separate events into composite characters, splitting up one individual into an ensemble cast, and various other red herrings and misdirection tricks. I may adopt all of those, none, or something else entirely. Who knows.

But if I’m admitting to some obfuscation, how can you know I’m not making everything up? You can not and will never know! The best I can offer is that the stories I tell are “real enough” and you can interpret that however you want. That’s as good as it gets.

What I’ll do instead is show you how the rules on confidentiality work in practice, and also give you a peek on how diligently I approach story-telling in general. Step onto my magic carpet.

Counsel, you’ve done goofed

Attorney-client confidentiality is governed by RPC 1.6, with most jurisdictions implementing only minor tweaks to the ABA model rule:

A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent [or] the disclosure is impliedly authorized in order to carry out the representation…

There’s an inherent tension between “keeping secrets” and “doing your job” and the rule tries not to be unreasonably rigid. Note for example the “impliedly authorized” phrasing, which is referencing how you don’t need to secure explicit or written authorization for each and every step you may choose to pursue. If a client tells me “I wasn’t near the shooting, I was with my dad” I don’t need to get their explicit, written, and notarized consent to tell my investigator to track down the dad and confirm the alibi.

There’s still some ambiguity on the edges, and the ABA “comments” to the rule try to add clarity to the range of potential scenarios. The disagreement about whether lawyers may “disclose” information already publicly available is an interesting contention. The ABA took a hardline “No” stance and issued (non-binding but persuasive) Formal Opinion 480 in 2018, but states are split on this issue. Legal marketers hate this rule because it hamstrings lawyers from advertising by bragging about the results they’ve secured for their clients.

Beyond advisory opinions, you have to hope that some other lawyer already stepped on a rake that resulted in a court issuing a ruling on the subject. On the specific topic of “public defenders blogging about their clients”, let’s examine the story of a public defender who blogged about her clients. The facts were pretty bad:

In her blog, the Respondent referred to her clients by their first names, a derivative of their first names, or their jail identification numbers. Her blog was open to the public and not password protected. Her blog revealed that a client had pled guilty to a drug charge when he was not guilty, in order to protect his older brother, and that another client had lied to the judge about his drug use and whom Respondent had encouraged not to rectify her misstatement to the court. Respondent’s blog also referred to the judge as being a “total asshole” and as “Judge Clueless.”

This is undeniably egregious conduct from an attorney, but her sanction was only a 60-day license suspension. The Illinois Supreme Court outlined some of the mitigating circumstances:

Counsel asked the panel to consider the traumatic event that led to the stress Attorney Peshek attempted to resolve through writing a blog about her experiences as a public defender. The stressful incident occurred when Attorney Peshek was representing a criminal defendant at his trial for home invasion and armed robbery. In open court during the trial, the client punched Attorney Peshek in the face, resulting in Attorney Peshek suffering a concussion and other physical injuries...The trial judge denied Attorney Peshek's motion to withdraw and Attorney Peshek was required to represent the client at his re-trial...Counsel advised the panel that Attorney Peshek began the blog about her thoughts and experiences to help her deal with her stressful situation. At no time did she discern any risk of disclosing client confidences, because she believed she adequately concealed her clients' identities to avoid inappropriate disclosure.

Understandable, perhaps.

There’s a lucrative market of attorneys writing memoirs under their own names about their famous clients. Robert Shapiro, Johnnie Cochran, and F. Lee Bailey wrote and spoke relatively freely (and often critically) about OJ Simpson’s case after it concluded for example. That was probably a combination of the bevy of information already publicly disclosed, some form of client consent (or at least, non-objection), and limited forays into the hallowed sepulcher of direct attorney-client communications.

Michael Cohen was able to write about the conversations with his former client also for many reasons. He could plausibly argue that Trump’s own public statements effectively waived privilege, cite the crime-fraud exception to privilege, or perhaps most consequentially, Cohen was already disbarred and had no reason to give a fuck. What were they going to do to him? Double disbar him?¹

Having demonstrated my familiarity with the relevant ethical obligations, it pains me greatly that I can’t publicly brag about all the elaborate measures I’ve taken to protect my clients’ confidentiality because it shows how smart and clever I am. Alas.

Fact-Checking Secrets

Anyone familiar with my writing probably can see I have a fetish for factual accuracy. Writing is regularly extremely time-consuming for me because I cannot resist diving into rabbit holes over the most inconsequential minutiae. An example is showcased in the paragraphs above, where I didn’t want to just write what I half-remembered about the ABA’s role in interpreting the Rules of Professional Conduct, which led me to search for other relevant advisory opinions, review what authority the ABA had over state bar associations, search for a direct link to Formal Opinion 480 on the ABA’s website, wonder why it appeared to have been taken down, and then finally jolting myself into moving on.²

I have my own standards I strive towards, and when it was just me writing legal commentary or anecdotes on my own, readers can just take it or leave it. I’m new to the field of ✌️Professional Writing✌️ and when I first started writing for Jesse Singal, I expected he’d want to scrutinize and fact-check my assertions, but this just wasn’t feasible for client stories.

But I face no such constraints when I tell stories about fist-fights at house parties. The only things I changed were people’s names, and perhaps some slight tweaks to chronology and dialogue for a better narrative flow. But just to show everyone my commitment to Truth™, I spelunked into my digital archives before putting pen to paper to make sure that my memory matched up with what really happened. A sample of the documentation I consulted in order to write Party Battle Maiden include:

• An email chain between Jacob and me from Jan 1st at 3:52pm that included a social media status update from Tiara recalling events from the night before. Jacob’s reply included extensive details from his perspective that I hadn’t directly witnessed.

• An email chain between me and all the DJs on Dec 27th at 8:18am to confirm they were all indeed fiending for a slot that night, and to confirm that the new year was indeed augured by M83 - Midnight City.

• A chat log from Jan 1st at 2:57pm where I fill in the details to an uninvolved friend who only caught glimpses of what happened from the periphery.

Why? Why do any of this? I spent literal hours trawling through archival snippets to confirm absolutely irrelevant minutiae. Well one, it was really affirming to see that my memory was fully corroborated and therefore could generally be relied upon. Second…I don’t know, I just feel a really intense discomfort and unease whenever I’m about to publicly broadcast an assertion whose veracity I’m unsure about. Folks who’ve met me in real life have probably seen me fact-check myself at parties to correct statements I made 5 minutes prior but then realized were misleading. I don’t know where this sentiment comes from or why it’s so intense, but I’m largely glad it’s there. The impulse might evaporate an inordinate amount of hours,³ but it probably pairs up with a nice credibility bonus.

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So yeah, hopefully I’ve demonstrated my devotion towards factual accuracy, and that I don’t lie to you. Except when I do.

1. That demonstrates an interesting incentive to make sure to always select attorneys who are unlikely to ever be disbarred (or convicted of felonies for conduct related to your representation, but that’s another matter).

2. I’m doing a really bad job at sticking to this declaration.

3. Hopefully my pending memoir’s haunting tenure doesn’t last too long.