The Intern, The Lawyer and The Recycling Bin: A Cautionary Tale

Here is a story that should frighten all lawyers who employ non-lawyers to assist with various tasks in their practice, which is to say, every one of them. If you have a lawyer, or ever expect to hire one, maybe it should frighten you, too.

A young woman dumped documents containing private information from the clients of one of Gainesville, Georgia’s most respected attorneys, in a newspaper recycling bin at The Gainesville Times. The Times said that a majority of the documents remained in their original file folders, and no effort had been made to conceal the contents or redact sensitive information. The files included phone and Social Security numbers of former clients, information on juveniles and reports and evaluations conducted by the Department of Family and Children Services and Court Appointed Special Advocates regarding the physical and sexual abuse, which state law requires be kept confidential.  From the Times:

“One file involved a years-long investigation into allegations of sexual abuse of four children, all under the age of 9 in 2004. Inside the file was a handwritten accusation signed by a relative, a log kept by a foster parent of the children’s sexualized behavior and a detailed psychotherapist’s report. Another file involved a 2007 investigation of a woman who allegedly binged on alcohol during her pregnancy, possibly resulting in her infant’s severely deformed leg. The file included the mother’s medical history, including documentation of a sexually transmitted infection and notes on a previous loss of custody of the woman’s two older children following allegations of sexual abuse.”

Also in the files: a former client’s W-2 form; a former client’s car title; copies of various personal checks written to one of  the attorney’s clients; criminal histories and personal medical records. The Times reviewed the files and properly determined that it needed to keep them safe until they could be properly destroyed, but didn’t hesitate to embarrass the lawyer by writing a story about his professional breach. The young woman who dumped the files was apparently a college intern who didn’t follow orders, still the lawyer and his firm violated two important ethics rules in the episode.

He, like all lawyers, is required to keep information he learns as a result of his representation of clients confidential, which means taking care that it, uh, doesn’t end up in a local newspaper’s recycling bin. The other requirement is articulated in Rule 5.3, which has become more crucial the more lawyers use paralegals, assistants, contractors, investigators and interns:

“With respect to a nonlawyer employed or retained by or associated with a lawyer:

(a) a partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;

(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and

(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Georgia Rules of Professional Conduct if engaged in by a lawyer if:

(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action….“

The lawyer  isn’t responsible for the conduct itself under the rule, but he is probably responsible for the reason it occurred: he didn’t properly train the intern to understand his duty, as a lawyer, to protect client confidences. How do I know this is true? Because almost all attorneys fail to make their non-lawyer assistants sufficiently aware of how crucial this duty is.

The law firm has made a formal statement that its system had broken down because of the intern; the lawyer said that he had been ill, and not able to supply his usual careful supervision. Discipline from the bar is unlikely, and probably inappropriate, unless the bar wanted to send a particularly vivid warning about the possible consequences of inadequate supervision of non-lawyer assistants. Nobody doubts that the lawyer is capable, ethical and trustworthy, but in this instance, his clients’ trust was violated.

“This is something that’s never happened the whole time I’ve been practicing,” he told the Times. ” You can’t watch your employees every day. … You hope you can go on autopilot, but I guess sometimes the plane crashes.”

And the lesson to attorneys is: When client confidences are involved, don’t go on autopilot!