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Week2

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  • 1. Confidentiality Assignment
  • 2. Imagine… • Whenever you discuss your work, consider your audience. • If you don’t know otherwise, assume you could be speaking to opposing counsel, or a reporter. • Are you telling them something they don’t already know, or could surmise? • Are you revealing information that would allow them to connect the matter or parties you’re talking about with internal information or conversations?
  • 3. How high-profile is it? • A high-profile matter may mean that many of the details are already public. • On the other hand: • It will be easier for anyone else to identify a matter (or a party) based on the information you describe. • It’s more likely that the details that are not already public will be of interest to many people, and passed along. • Rule of thumb for high-profile cases -- either: • stick to the facts reported in the paper or court documents and disclose nothing internal OR • do not reference the factual details at all; make the information disclosed as generic as possible.
  • 4. Are you representing a client directly? • Some public interest field placements are involved more in policy matters or in general outreach and fact-gathering. Without a client, there may be less concern about confidentiality of client information. • However: • Due to the policy objectives of the organization, they may prefer that the public message be managed carefully. • Just because there is a policy objective doesn't mean there is no client, or no confidential information. • Impact litigation still involves clients. • Strategies for pursuing policy objectives may be confidential. • If there is no client, you should still be careful about discussing information with others involved in policymaking on the same subject, or the press.
  • 5. Is the case in active litigation? • Almost everything that is already on a court docket is a matter of public record. • However: • If the case is still being litigated, nonpublic information (including strategy, and research about documents yet to be filed) is useful to opposing counsel. • If you work for a judge, internal information about judicial decisionmaking is useful to both parties. • If the case is closed and time for appeal has passed, then the information decreases significantly in significance. • For litigation matters, much less information is confidential than in transactional matters, but • Avoid revealing strategy or results of research that did not make it into filed documents. • In a judicial setting, never reveal the thought processes or interim decisions of individual judges in specific cases, nor the results of your own research that assisted them in their decisionmaking.
  • 6. Is the matter subject to restrictions other than legal ethics? • Companies and individuals may be subject to other restrictions: • securities regulation • regulation of medical data and personal information (like social security numbers) • contractual nondisclosure obligations • the need to protect trade secrets or other intellectual property • business reasons (such as the effect of the information on the price of their stock or other deals in progress) • Elected officials (and those who work for them in government agencies) may need to be careful what they say for political reasons. • Don’t assume that you know all of the reasons why information would need to be kept confidential; ask whether there are any additional obligations that may apply.
  • 7. Is what you’re discussing typical of a case like this? • That you’re researching an unidentified issue, or indicting a case, or performing due diligence, would be no secret to anyone, even if you identified the client or defendant. • However: • The outcome of research is almost always confidential. • The content of internal discussions of strategy are confidential. • The existence of (potential) deals, or the fact that a certain appellate judge has a given case, may be confidential. • Beware of discussing anything of the form “we talked about x/ I researched y and concluded that….”
  • 8. It’s not individual facts, but the sum total of the facts. • Consider all of the facts that you have revealed. • If someone could connect all of the dots, eliminate some dots.
  • 9. Each organization is different. • Be sure to discuss your organization’s confidentiality policy with your supervisor. • Reasons why rules may vary: • Government placements may be subject to sunshine/open records requirements, so less is confidential. • In-house placements may deal heavily in trade secrets and IP, so more is confidential. • Judicial placements are concerned about bias and appearance of impropriety, so different types of information are of concern.
  • 10. Confidentiality Assignment • Describe your first assignment(s) in 250-300 words, providing as much detail as possible without revealing too much. If necessary for context or to fill out the assignment: • You can add information about what your organization or division does. • You can describe your organization’s confidentiality policy, and the particular concerns that motivate it. • Provide it to your supervisor for review, and discuss whether you can add more information, or need to delete information (and why). • Edit it based on supervisor comments. • Certify at the bottom of the page: “I, [name], pursuant to the Professional Conduct Code, certify that I have discussed this with my supervisor and it satisfies my confidentiality obligations.” • Upload a Word document containing the assignment and certification on Blackboard.