Breaching one's professional obligations of confidentiality can have serious consequences to the person who can't – or won't – keep a secret, particularly if the person breaching the confidence is a lawyer.
This point was made clear in a recent news story involving J.K. Rowling, author of the immensely successful Harry Potter series. Her popular novels proved to be the top-selling book franchise in history, spawning the highest grossing movie franchise ever.
But when the Harry Potter series ended, she wrote a new crime novel, The Cuckoo's Calling, featuring a private investigator named Cormoran Strike. She wrote it under the pseudonym "Robert Galbraith." Described as a former plainclothes military policeman who had left the British Army to work in the private security industry, it was "Galbraith's" first novel. Ms. Rowling, having sold over 450 million Harry Potter books, wanted total anonymity and confidentiality with respect to Galbraith's true identity. That's why she wrote it under a nom de plume.
The real author of The Cuckoo's Calling was revealed (and Rowling's cover blown) not by a publisher, a book distributor or anyone else in the book trade. Her cover was blown by her own lawyers.
She used the London firm Russells for her legal work, which describes itself as "one of the leading firms in the entertainment industry," adhering to "the highest standard of professionalism." Unfortunately, Christopher Gossage, a partner at Russells, bragged/gossipped/winked/nudged or otherwise disclosed Galbraith's 'doppelganger' to his wife's friend, Judith Callegari. And like wildfire, the secret escaped because Ms. Callegari seems to have disclosed it to a journalist through Twitter.
Said Ms. Rowling: "To say that I am disappointed is an understatement. I had assumed that I could expect total confidentiality from Russells, a reputable professional firm, and I feel very angry that my trust turned out to be misplaced. A tiny number of people knew my pseudonym and it has not been pleasant to wonder for days how a woman whom I had never heard of…could have found out something that many of my oldest friends did not know."
Russells went into reputation management overdrive to try to fix the damage when the source of the leak was uncovered to be Russells itself. The firm apologized, saying in a statement: "Russells Solicitors apologize unreservedly for the disclosure caused by one of our partners, Chris Gossage, in revealing to his wife's best friend...that the true identity of Robert Galbraith was in fact J.K. Rowling."
Russells agreed to pay an undisclosed sum to Ms. Rowling, who donated it to charity.
But the issue was never about money. It was about confidentiality and having your confidentiality breached by your lawyers; a profession that is duty bound to keep client information confidential.
Clients should demand and expect total confidentiality from their lawyers. Breaches of client confidentiality by lawyers will have consequences to that lawyer's continued ability to practice law, notwithstanding any civil action a client might have against that lawyer for breaching confidences, and notwithstanding that lawyer's ability to keep existing clients and attract new ones.
An excerpt of the Code of Professional Conduct that Canadian lawyers must adhere to states: "A lawyer at all times must hold in strict confidence all information concerning the business and affairs of a client acquired in the course of the professional relationship and must not divulge any such information unless expressly or impliedly authorized by the client or required by law or a court to do so…"
The Rule includes the following commentary: "A lawyer should avoid indiscreet conversations and other communications, even with the lawyer's spouse or family, about a client's affairs and should shun any gossip about such things even though the client is not named or otherwise identified. Similarly, a lawyer should not repeat any gossip or information about the client's business or affairs that is overheard or recounted to the lawyer. Apart altogether from ethical considerations or questions of good taste, indiscreet shoptalk among lawyers, if overheard by third parties able to identify the matter being discussed, could result in prejudice to the client. Moreover, the respect of the listener for lawyers and the legal profession will probably be lessened."
The J.K. Rowling story is a good reminder to lawyers and law firms that a breach of confidentiality can damage not only the reputation of one lawyer with loose lips, but the reputation of an entire law firm. I can only imagine what Russells is saying to its existing clients in the entertainment, media and publishing industry to keep them from moving their business away to other firms. And I can only imagine what other London firms might be thinking about doing to encourage "Russells Refugees" to move their business.
For Russells and Mr. Gossage, it's a reputation management disaster and they will have to weather the storm. Apologizing right away and paying a settlement was their only recourse.
But in a twist of fate, The Cuckoo's Calling sold less than 1500 copies before J.K. Rowling's cover was blown. Sales have since risen by 150,000 per cent.
Tony Wilson is a franchising, licensing and intellectual property lawyer at Boughton Law Corp. in Vancouver, he is an adjunct professor at Simon Fraser University (SFU), and he is the author of two books: Manage Your Online Reputation, and Buying a Franchise in Canada. His opinions do not reflect those of the Law Society of British Columbia, SFU or any other organization.