How are lawyers STILL making this mistake?

I watched an ethics violation unfold right next to me today. So, of course, I had to vlog about it.  Scroll below for the transcript if you don’t want to watch the video.

I’m on the road, minding my own business in my usual breakfast joint, enjoying my Spinach Feta Egg White Wrap and Grande Non-Fat Latte.  The breakfast of Champions.  Three guys sit down next to me and start to talk.  Here’s what I know: these guys are lawyers and they are involved in a suit about a particular kitchen accessory. The guy against the wall flew in from Washington DC this morning and he appears to be an expert or specialized legal counsel of some sort.

It appears that the expert (that’s what I’ll call him) is going to give testimony today and these guys are talking about the best approach.  They’ve talked about statistics and the design of the product at issue. The expert is laying out the various ways the team could approach the matter and he’s giving examples of testimony that’s been given in previous cases.

The reason I know the case is about a kitchen appliance [[arrow]]  is because one of the lawyers brought one into the coffee shop and it’s sitting on the table next to them. The expert keeps putting his hand on it and talking about it. You don’t have to be Sherlock Holes to figure this stuff out. I heard the name of one of the the Judges involved in the case, I heard that they’ve submitted mediation statements, and I heard a whole lot of substance that this expert is going to be addressing.

The reason I know all of this is because I COULD HEAR EVERYTHING THEY WERE SAYING. I wasn’t eavesdropping, I was just sitting about 24 inches away from them at the next table in a public coffee shop.

This, people, is why I continue to have a job.

The very first thing we teach in law school about confidentiality is that you shouldn’t be talking about your clients’ matters in public places. I mean, the hypos we use talk about actually include restaurants in the fact pattern.   It’s so basic, that if I were to mention this at the ethics program I’m delivering tomorrow, the lawyers in the firm would roll their eyes at me. “Who would be so stupid to do something like that?” they’d say.  “Come on- talk to us about a more sophisticated issue.” But this is real life.  And this happens all the time.  Most of us who get into trouble don’t do something outlandish like steal from a trust account or forge a document.  We make stupid mistakes because we let our guard down in every day situations.

Do you think those lawyers knew that they were sitting next to someone who investigates ethics grievances? Do you think they had any idea at all that I was sitting right next to them tearing them to ethical pieces? NO. Do you know why? Because they suffer from a malady that we all have at one time or another.  “Little old me” syndrome. Do you really think that someone is listening to what I have to say? Little old me? Who really cares about listening to little old me?

The answer is everyone is listening to everything you say and everything you write.  You have GOT to have a heightened state of awareness about these things.  There is no such thing as “little old me.” It’s BIG OLD YOU and you’re a constant target.

Even though I’m going on about this for a while, this entire escapade actually happened very quickly. And I was just going to leave well enough alone because it seemed as if they were going to leave.  But then, another guy showed up and he started speaking louder, which prompted one of the first guys to stand up and basically shout.

I couldn’t take it anymore.  I packed my bag up, threw on my jacket and as I walked out I tapped the standing guy on the shoulder and said, “Could I steal you for a minute?” We walked a few feet away from the tables and I said, “I teach professional responsibility for a living. Stop talking about your client’s files in a public place like this. Someone’s going to overhear you and you’re gonna get smacked for it.  I’m just trying to help you out.”  He replied, “Oh, fair point.” And I left.

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