Plaintiffs’ lawyers may exhibit confidence, but not confidences

A week ago Law360, a LexisNexis newsletter, reported that a Florida law firm and its principal attorney had sued a unit of AIG, an insurance carrier, for allegedly “misleading them into defending a sports memorabilia collector and his company” in an SEC investigation that resulted in charges.  The item helpfully named the case and linked to a copy of the complaint.

In the complaint the plaintiff law firm and lawyer, who are representing themselves, identified the client by initials only as MK, stating that “providing the initials is proper for the present pleading, considering the ongoing active criminal and related civil proceedings regarding that person who needs legal representation.”  The AIG unit had hired the plaintiffs to represent and defend a husband and wife in the underlying investigation.  Throughout the complaint the lawyers carefully refer to the husband only as “MK” and don’t name MK’s wife.  The plaintiffs did state in the complaint that in addition to facing the SEC civil charges MK was a defendant in two criminal cases, both cited by case number.  The complaint describes MK’s arrest and detention in Germany, his extradition to the United States, his detention in Nevada, and his eventual plea bargain.

The exhibits to the complaint include an e-mail from AIG’s outside counsel to MK and some invoices from the plaintiff to AIG.  The plaintiffs redacted MK’s name from the e-mail and redacted almost all of the substantive content from the invoices, including all mentions of MK’s name.

The plaintiffs did not, however, redact from the e-mail three mentions of MK’s wife, whom the law firm was also representing.  Two references are by Mrs. MK’s first name only; the third is by her full and uncommon name.  Eleven of the first 12 Google results for searching for Mrs. MK’s full name disclose MK’s name and the Ks’ legal troubles.

Rule 4-1.6 of the Florida State Bar’s rules of professional conduct states that “A lawyer must not reveal information relating to a client’s representation except as stated in subdivisions (b), (c), and (d), unless the client gives informed consent.”  (The Oregon State Bar’s Rule 1.6 is nearly identical except for formatting.)

Florida does not define the term “information relating to a client’s representation.”  Oregon does define its similar term, “information relating to the representation of a client,” to include not just privileged information (private attorney-client communications about the representation) but also any information that the lawyer gathers in the course of the representation “the disclosure of which would be embarrassing or would be likely to be detrimental to the client.”  Information doesn’t cease to be embarrassing or detrimental just because it’s available to members of the public who know where to look.

The lawyers may have obtained the consent of MK and Mrs. MK to the disclosures that they made in their complaint against the Ks’ insurer before they filed the complaint.  The case is nevertheless a reminder to practitioners to beware of disclosing confidential or embarrassing information about a client, not just in memoranda, but in the exhibits.