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.
