Group May Sue Former Clerk Whose Essays Allegedly Breached Confidentiality Agreement

The ABA/BNA Lawyers’ Manual on Professional Conduct™ is a trusted resource that helps attorneys understand cases and decisions that directly impacts their work, practice ethically, and...

By Lance J. Rogers

Louisiana's anti-SLAPP statute does not prevent a legal aid group from suing a former summer law clerk that it claims has revealed client confidences in literary works she has published about her experiences, the U.S. District Court for the Eastern District of Louisiana held Nov. 23 (Louisiana Crisis Assistance Center v. Marzano-Lesnevich, E.D. La., No 11-2102, 11/23/11).

The group's lawsuit for injunctive relief survives the former clerk's “special motion to strike,” Judge Carl J. Barber decided, because the plaintiff put forth evidence that the defendant orally agreed to obey lawyer conduct rules on confidentiality but nonetheless disclosed sensitive client information in her writings that likely compromised the group's ability to gain future clients' trust.

Volunteer Law Clerk

The Louisiana Capital Assistance Center sued Alexandria Marzano-Lesnevich, claiming that she breached an oral agreement not to disclose confidential client information she gleaned while clerking at LCAC. According to the complaint, Marzano-Lesnevich published essays on her website and in a literary journal that revealed sensitive information about specific clients and their cases, even though some of the characters were given pseudonyms.

LCAC, the court said, handles “high-stakes capital cases.” Marzano-Lesnevich served as a volunteer law clerk at the center in 2003, when she was still a student at Harvard Law School.

When it discovered the writings, LCAC asked Marzano-Lesnevich to withdraw some existing works from publication and sought to enjoin her from publishing anything else that disclosed confidential information.

The case was removed to federal court, where Marzano-Lesnevich filed a special motion to strike under La. Code Civ. Proc. art. 971—Louisiana's “anti-SLAPP” law—arguing that the lawsuit is an attempt to muzzle her free speech rights. The statute requires a plaintiff to establish that it has a reasonable probability of prevailing on the merits once the defendant shows that her conduct arose from protected First Amendment activity.

Barber concluded that LCAC met its burden of establishing a reasonable chance of success on its claim for breach of oral contract.

Free Speech Implicated

As a threshold matter, Barber ruled that the anti-SLAPP law mandate is not a state procedural requirement that may be disregarded as incompatible with the Federal Rules of Civil Procedure.

Although he conceded that some lower federal courts have ruled that anti-SLAPP provisions aren't applicable in federal actions because they collide with federal law, Barber found more persuasive those decisions that have gone the other way, including two circuit court decisions.

Barber dispatched LCAC's argument that Marzano-Lesnevich wasn't engaged in protected speech, ruling that she successfully shifted the burden of proof under the state anti-SLAPP provisions. “It is clear that the publication of a work of literature is among the purest exercises of the right to free speech guaranteed under the First Amendment,” Barber wrote.

Promise to Obey Ethics Rules

Nonetheless, Barber said, LCAC may proceed with its lawsuit because it met the burden of showing that it has a reasonable chance of prevailing on its claim.

On the question of whether Marzano-Lesnevich agreed not to reveal confidential information about LCAC clients, Barber noted that the organization presented the declaration of the woman who trained summer law clerks, stating that she specifically informed Marzano-Lesnevich of her duty to preserve client confidentiality.

This evidence was substantially corroborated, Barber said, by:

• LCAC's director, who noted the organization's “long-standing policy” of affirmatively requiring its summer clerks to abide by the ethics rules governing lawyers in Louisiana;

• evidence that Marzano-Lesnevich had written research memos emblazoned with the words “confidential” and “subject to the attorney-client privilege”; and

• the fact that all Louisiana attorneys are aware of their duty to supervise subordinates under Louisiana Rule of Professional Conduct 5.3(c) by making reasonable efforts to ensure that the nonlawyers conform their conduct to the rules of ethics.

On the question of whether LCAC could show a breach of confidentiality, Barber pointed to specific passages in Marzano-Lesnevich's essays that named one client and gave another a pseudonym but added enough details about the case such that the client's identity “could easily be ascertained.”

Matter of Trust

Addressing Marzano-Lesnevich's argument that matters of public record aren't protected, Barber noted the holdings by some courts that the duty of confidentiality is not nullified simply because the information is available to the public. In any event, he added, some of the information allegedly disclosed was not a matter of public record.

Barber also concluded that LCAC met its burden of showing damages by asserting that its ability to defend indigent clients has been compromised because clients will not trust an organization that leaked confidential material.

“The disclosure of sensitive information regarding a client's mental health or other information disclosed by a client in confidence may result in reluctance on the part of future LCAC clients to share such information with their attorneys, thereby compromising LCAC's ability to provide those clients with effective representation,” Barber wrote.

Harry Simms Hardin III, Mark A. Cunningham, and Christopher D. Cazenave of Jones, Walker, Waechter, Poitevent, Carrère & Denègre, New Orleans, are representing the LCAC. Marzano-Lesnevich is represented by Loretta G. Mince and Alysson L. Mills of Fishman Haygood Phelps Walmsley Willis & Swanson, New Orleans.


Full text at http://op.bna.com/mopc.nsf/r?Open=kswn-8p2pxr .

 

The ABA/BNA Lawyers’ Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and BNA.

Copyright 2011, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.