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Thursday, 13 October 2011

It's criminal on the 07:43 from Woking

This morning, just by coincidence, two people I follow on Twitter had very similar experiences while commuting on the train. Both saw a fellow passenger working on a laptop. We'll omit the names to protect the guilty, but the laptop-jockeys were lawyers, one of them at a famous magic circle firm. The details of their clients and the matters they were working on were clearly visible to their fellow passengers.

This sparked a light-hearted debate on Twitter about work life balance. Workaholic lawyers are using their train journeys to finish off those crucial PowerPoint presentations. The phrase "get a life" was used. But what went through my mind was "get a grip". There are serious issues involved.


Anyone who reads my blog regularly will know I am an advocate for normalising legal services, demystifying communications between lawyers and clients and bringing the profession up to date. But there are some things that are too important to compromise. A fundamental part of what makes a lawyer special is the promise of absolute confidentiality. The public don't understand legal privilege and I'm not sure much of the legal profession do either after Three Rivers. But they know that, like a priest in a confessional, a lawyer will keep your secrets, so you can tell them everything. This is true of every branch of the profession, from criminal briefs to in-house lawyers. In my own job, the ability to keep confidences, not most of the time but every single time, is a critical part of the role I perform. To operate effectively as a lawyer, you need to be unimpeachable when it comes to keeping secrets.


Let's just remind ourselves of some black letter rules here. SRA O4.1 states: "You must achieve these outcomes: you keep the affairs of clients confidential unless disclosure is required or permitted by law or the client consents". SRA IB4.2 states "you comply with the law in respect of your fiduciary duties in relation to confidentiality and disclosure".


If your client is a company listed in London, like my own employer, and the matter you're working on is inside information, then there's more. Section 52(2) (b) in Part V of the Criminal Justice Act 1993 states that an individual commits an offence if "
he discloses the [inside] information, otherwise than in the proper performance of the functions of his employment, office or profession, to another person." The maximum penalty for a violation is seven years in prison.


If a firm I instructed was to allow my company's confidential information to be seen on trains, I would disinstruct the firm, blacklist them and report them to the SRA. If an individual lawyer in my team did the same, I would fire them summarily for gross misconduct. 


If you think that a secret is something you tell one person at a time, you're in the wrong job. If you've got work life problems, resolve them. If you're on the train working on my file on your laptop, you're a criminal and you're fired.

17 comments:

  1. These guys lack brain cells (worrying given their profession). It is not rocket science to keep a laptop screen out of sight of other people, unless the train is really crowded in which case, don't deal with confidential stuff. I was once on a train with a psychiatrist who was dictating notes into a recorder. Unbelievable. Patient name, address, details of consultation, medical information. It was a long time ago and I can't remember quite what happened. Maybe one of us other passengers tipped him out of the train. A part of me would like that to have been the ending. Perhaps the train companies could amend their 'quiet coach' notices eg Every coach is a quiet coach when it comes to blabbing about someone else's confidential information.

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  2. The same thing is repeated in the early morning trains from Manchester to London - lawyers, and also senior officers from big organisations, on laptops, shuffling papers and having loud LOOK AT ME I"M IMPORTANT calls on their mobiles.

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  3. Interesting post - This morning Oliver Lewtwin is accused of dumping documents in a park bin. My take on Letwin's folly or #dustbingate especially the data protection implications is here: http://informationlaw.org.uk/page8.htm#104616

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  4. Also a common problem with barristers, both with papers and on the phone! Been on a train to Liverpool with senior civil servants discussing policies openly.

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  5. I see this sort of thing on morning trains all over the UK and not just with the legal profession. I have overheard highly confidential conversations, both where there are groups sitting together and with people on the phone, I have overlooked legal documents, police files, sensitive NHS data and even seen HMG Classified documents and laptops left unattended whilst the owner went for coffee. Data Protection Act? Caldicott Guidelines? HMG Security Policy Framework? Criminal Justice Act? SRA? It is not as though there is a lack of direction in this matter!

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  6. Actually, I think we should get away from The Cult Of Confidential in this country. Face it. Most information about you and your dull company is not sensitive, it is not price critical, and it is certainly not a crime to risk that somebody on a train sees it. Find something worth worrying about to worry about.

    You sound a bit of a prig to be honest. If you were my client, I'D fire YOU and send you back your files in a Biffa skip.

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  7. I'm happy to post up critical comments.

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  8. Great post Tom - It always amuses me when discussing LPO operations that law firm partners often suck their teeth and mumble about security. Having seen the inside of both offshore process centres and UK law firms, and seen the relative controls on information both inside and outside the facilities (and the post above shows some of the problems with employee awareness), I don't think the law firms have the right to throw stones.

    ps did it strike you as amusing that the poster railing against the cult of confidentiality posted anonymously! :-)

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  9. Great post, Tom.

    Just to re-iterate that this is indeed something to worry about.

    Whoever wrote the anonymous comment above saying we have nothing to worry about because most client information is dull sounds rather naive and myopic. It only takes one relevant person with an interest in a case or a transaction to read such a laptop screen for there to be serious consequences, either for a case, transaction, the lawyer, the lawyer's client, the law firm or indeed the rule of law itself.

    If work has to be done, it should ideally be non-client non-chargeable work.

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  10. The 7:45 from Woking? Some of us are already in the office by then...

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  11. Nice post and true everywhere: There are several famous stories about lawyers working less than confidentially on the Acela/Amtrak on the east coast of the US (the lines that run between Boston and DC on the Northeast Corridor are jammed with lawyers). Probably the most famous was this series covered in ATL: http://bit.ly/eeLOy8.

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  12. That's a great post about the Acela cellphone indiscretions. Thanks for the link. It seems like we all have this same issue. Several people have made the point that it's not just about carelessness, it's also about old-fashioned showing off.

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  13. I'm not a criminal lawyer, but wouldn't you have to prove that the villain of the piece had intended to disclose the information? I can't see that mere carelessness would be enough.

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  14. Tom, just one amusing note to add to this very good post. A year or so ago I was rushing to catch my train having had to work late to get a draft out to the other side's solicitors. Upon sitting down in the carriage, I noticed that the lady next to me was working on a laptop. The document she was working on? You guessed it, the very distinctive draft I had just issued.

    Thankfully I had not seen her, presumably internal, comments and was able to raise the issue with her discreetly. Given the look of shock and guilt on her face, I don't think she will do it again.

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  15. As a non-lawyer, I follow a process suggested by a boss of mine 25 years ago. When taking a seat on an airplane or train, (1) introduce yourself to your seatmate and mention the name of your employer or at least the sector in which you work, (2) say that you'll be doing some sensitive work, and (3) ask if your seatmate works for a competitor or some other company that could pose a problem. There is a possibility that the seatmate will lie, but odds are that the seatmate will answer honestly and then you can act accordingly.

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  16. Great post about the cellphone indiscretions. I can't see that mere carelessness would be enough. Previous the same thing is repeated in the early morning trains from Manchester to London.
    Business Lawyer

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