Confidentiality Confessions of a Lawyer

Before starting OCEG in 2002 with my colleague and friend, Scott Mitchell, I must confess that I was a lawyer. Not just any lawyer, but one with twenty years of corporate practice in Washington, D.C.

I advised clients in many highly regulated industries on how to best address the myriad of regulations they faced. I helped them design compliance programs, lobby for (or against) changes in regulations, and defended them in litigation. And yes, my point of view in all of these activities was colored by the training I had received and the experiences I had as I determined how best to protect the organizations I represented from damage to their reputations and their bottom lines.

Like many other lawyers, my view of what was good for my clients became narrower and more constricted. Secrecy, confidentiality, and a tight-lipped culture seemed the best way to ensure that only messages which were pre-approved and legally screened would be spread by and on behalf of the company.

Over the years, I participated in many discussions in which lawyers, sometimes even me, suggested that clients no longer provide any references (good or bad) for former employees out of fear that a bad review would trigger a lawsuit. Or encouraged only reporting regulatory missteps that the law or regulations absolutely required to be reported — and even then in the narrowest terms possible to limit reputational damage. Or recommended keeping virtually every compliance related piece of information under attorney-client privilege to avoid damage claims.

Over the past 20 years of my practice, I saw this drive toward a “siege mentality” of managing from fear of attack grow and take over the ability to use information to its full advantage. And many times, I thought and advised that it would be better to speak out and control the way information would be presented, rather than hunker down and allow others to manipulate and use it. But this wasn’t advise that was often heeded.

The feeling of being under attack, which was not always irrational in our litigious society, also led many to engage in counter-attacks, especially against employees who were formal or informal whistleblowers, internally or externally airing the company’s proverbial dirty laundry. But both the instinct for self-protection and the reactive counter-attacks and retaliation proved counter-productive and resulted in even larger hits to reputation and the wallet as litigation over retaliation ensued.

Just as the companies pushed for control over information, they were faced with losing it more quickly and completely in the age of the internet. Not only did the mechanisms for rapid and far-reaching spread of information develop; attitudes about privacy and sharing of information in society changed.

Remember when it was considered rude to talk about politics, money, sex or religion? Doesn’t it seem that is all anyone does today? Remember a time when people kept details of issues in their personal relationships or feelings about employers as topics for discussion only with a small group of close friends (if even that)? And can you recall what it was like to have the luxury of days, or even a few hours, to consider how you might respond to a claim against you or an attack on your integrity?

Today, employees and managers alike are operating in a different kind of world of information. The desire and ability to speak out loud to a large, often anonymous, audience, is different than it was twenty years ago. The transparency of information is greater than ever before, and the public response to any counter-attack you might make if an employee violates your demand for confidentiality may knock out you or your company faster than you can plan your next step.

Maybe we need to consider that the lawyer’s instinct for holding information close to the chest just doesn’t fly anymore. Maybe we need to think anew about what needs to be confidential and what doesn’t; what we can gain by being more transparent and how we can enable employees and other stakeholders in our organizations to help us advance our goals together.

Maybe, just maybe, we need to not kill all the lawyers, but at least not let them override our own judgement about how best to use our own information and participate in the global conversation that is taking place around us, and about us, whether we like it or not.