Blindsided on the Road to Best-Sellerdom
By Paul Coggins
It is becoming more and more common for lawyers to venture into the literary realm: a sports agent writing a tell-all about famous clients, the former prosecutor writing a behind-the-scenes account of the gritty details of a high-profile case, the all-star litigator penning a biography littered with war stories. The lure of fame and fortune associated with writing a bestselling book can be strong, but dishing on former clients or cases raises serious ethical, personal and even legal concerns.
An attorney’s first concern in the practice of law and in deciding whether to write a book should be his or her clients. Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct prohibits an attorney from revealing a client’s confidential information without the client’s authorization. While “confidential information” is not specifically defined in the rules, Rule 1.05 speaks in broad terms and contemplates including information generally learned by the attorney in the course of representing the client.
So the first step for a lawyer considering writing a book about a former client or case is to get the client’s permission. This permission should be memorialized in writing, and the exact nature of information to be disclosed should be discussed in detail. Note that this conversation must occur after the representation is complete, as Rule 1.08 prohibits an attorney from negotiating media or literary rights to a client’s story prior to the conclusion of the representation.
The attorney-client privilege is a related, but separate, issue from the client confidentiality issue. A client needs to be fully informed about the implications of waiving the attorney-client privilege. The privilege issue is complicated by case law that allows for “subject-matter” waiver of privilege, which means that disclosure of information regarding a specific topic may waive the privilege for all information regarding that topic. While this issue might be less burning if the representation is far enough in the past, clients need to be aware that a tell-all book could create waiver issues.
A budding attorney-author also needs to think about prohibitions of any current or former employers on disseminating confidential information. Many employers have restrictions on disclosing information gained in the course of employment. The attorney should also have a discussion with
colleagues who will be portrayed in the book to address any potential concerns.
A special concern for government employees is whether they can legally write a book while being employed by the government. Many states have “honorarium” prohibitions for government employees that may prevent them from writing a book about anything related to their public service while still employed with the government. See, e.g., Tex. Penal Code § 36.07.
Various other legal concerns exist for an attorney tempted to write a non-fiction book. Portraying someone in a negative light could lead to a defamation suit, and revealing non-public information about someone could implicate different “invasion of privacy” type torts.
There are also personal and professional issues that an attorney should consider before penning a masterpiece. Coming out with a book that is viewed as profiting from a tragedy—think the Casey Anthony trial—could have a negative effect on a lawyer’s personal reputation. A revealing book about a famous client might deter future high-profile clients from seeking the author’s services. Even if the book had been authorized by the client,
high-profile clients may still see this as a breach of trust. Finally, writing a book is a time-consuming task, and a busy attorney may not have the time required to finish a book, even with a ghost writer working behind the scenes.
In conclusion, an attorney has a number of concerns outside of the traditional issues facing every potential author. The most important concern for any attorney undertaking this challenge is the professional obligations owed to his or her clients. While the financial rewards may be tempting, they may be outweighed by the potential professional consequences.
Paul Coggins is a partner at Locke Lord LLP. He can be reached at pcoggins@lockelord.com. He was assisted in writing this article by Adam Tyler, an associate at Locke Lord LLP.
