Secrecy: How Quaint

Debra Pickett is president of Page 2 Communications (www.page2comm.com).  A former newspaper columnist and television commentator, Pickett offers consulting and training services to law firms and lawyers who deal with the media.  Reach her at deb@page2comm.com.

The Supreme Court was set to “conference” this morning, with the Justices presumably sharing their votes on the health-care case and deciding who will write the opinion[s] that will shape the law of the land.

Their decision won’t be announced until June.

It seems almost quaint in these days of Twittering transparency that so monumental a secret will be kept, probably successfully, for the next few months.  The Justices and their clerks will be working away, but somehow will have to resist the temptation to enter “dismantling Obamacare” as a Facebook status. 

Mark Sherman, of the Associated Press, writing here, did find a couple of instances when Supreme Court rulings have leaked into view, including, notably, when “the court inadvertently posted opinions and orders on its website about a half-hour too soon in December.”

Still, in an age when so few areas of endeavor remain truly confidential, litigation and legislation continue to take place largely outside public view and lawyers and judges continue work hard to make sure that this is so.  Indeed, law firm culture is built around client confidentiality.  But clients themselves are changing.  Their expectations around privacy increasingly are shaped by reality TV and mass media tell-all tours.  The blogosphere is constantly dividing itself into “Team This” versus “Team That,” and the desire to tell one’s story, and garner social media support for a point of view, is deeply characteristic of the up and coming generation of entrepreneurs and deal makers.

What can you, as an attorney, do when faced with a client who wants to go public while a matter is still being considered?

First, know the relevant codes of professional conduct and understand how they come into play.  What information is off-limits in extrajudicial statements?  If there has been recent adverse publicity – not initiated by you or your client – Illinois’ rules of professional conduct do allow you to make public statements that protect your client from the prejudicial effects of that publicity.  In other words, silence is not the only ethical response.

Second, consider your client’s temperament and how you can help mitigate risks and limit exposure created if he or she does speak (or post) publicly.  Does your client need a “minder” to be present during media interviews or should someone offer coaching in advance of a public appearance to clarify what needs to be kept confidential?  These services might be available to your client through a public relations firm already on retainer or through resources connected to your own marketing department.

 Third and finally, take a moment to talk with your client about the long-term and strategic impact of the statements they wish to make.  Are there implications for their relationships with customers, employees and neighbors?  While it’s certainly tempting to engage in the rampant speculation that often fills an official communication void, there are probably more productive ways to engage in civic conversations about important matters.

If all else fails, perhaps it’s time to suggest that your client look to the disciplined folks at SCOTUS as role models.  They can take the Unplugging Pledge here.

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