Attorney Brian F. Labovick thought his comments posted on the Trial Talk web site, started by the Palm Beach County Trial Lawyers Association five years ago, were secure from prying eyes. Only lawyers who solely represent plaintiffs are permitted to use the site. Members can get access only through use of a private password, and they’re sworn to secrecy about its contents.
Understandably, Labovick was shocked to receive a letter from Palm Beach, FL, Circuit Judge Diana Lewis, saying that she’d received a copy of a critical note about her that Labovick had posted on the forum.
According to the article in Law.com, the posting, and Lewis’ response, have triggered an unusual ethics controversy. The Palm Beach County Trial Lawyers Association has hired a forensic expert to investigate who may have breached the Web discussion group’s confidentiality rules.
Anthony Alfieri, director of the University of Miami law school’s Center for Ethics and Public Service, said there are at least four levels of ethics issues that need to be explored in the case: Labovick’s original Web posting, the disclosure of the posting, whether opposing counsel participated in the disclosure and whether Lewis’ letter to the lawyers violated judicial canon. Another ethics question is whether Labovick told his client about the incident with Lewis, and the potential for it to impact the case.
Most attorney responses I have monitored thus far to this news article express sentiments like “I never post anything I would not fear appearing in public.” But I don’t believe this to really be true, based on the comments I frequently see posted on the many legal listservs I monitor. These legal listservs have become the new “water cooler” around which people gather to exchange insights, comments and ideas. In order to be most valuable, they must be open to candor.
Until the dust settles on this one, especially regarding whether or not there will be actual sanctions brought against the culprit who broke the confidentiality of the listserv–assuming that person can be identified by the forensics experts–be careful out there!
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[...] Back on November 11, 2005 my post entitled “How Secure Is Your Listserv Comment?” told about how a post on a private, qualified participant-only listserv became unwittingly public, and about all the resulting embarrassment, furor and related complicated ethical violation issues which were raised. This post presents two more examples of potential problems. [...]