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  1. 1. Confidentiality Assignment
  2. 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. 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. 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. 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. 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. 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. 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. 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. 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.