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D. Protecting Confidentiality of Agency Information

Contents

  1. Introduction
  2. Confidential Information
  3. Privileged Matters and Waiver
  4. Implementing Procedures to Protect Confidential Information from Disclosure and to Prevent Waiver of Privileges

D. Protecting Confidentiality of Agency Information

1. Introduction

Legal units must at all times remain mindful of the importance of protecting confidential and privileged information from unauthorized disclosure. All EEOC staff, including temporary employees and contract workers,1 must be specifically informed of the duty to keep information confidential both during the time they are doing work for the Commission and afterwards.

2. Confidential Information

Pursuant to Rule 1.6 of the Model Rules of Professional Conduct (MRPC), a lawyer must not reveal information relating to the representation of a client 2 without the client’s informed consent, subject to very limited exceptions. Comment [16] to Rule 1.6 states that “[a] lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision.” The duty of confidentiality continues after the attorney-client relationship has ended. Comment [18].

A lawyer must make reasonable efforts to ensure that each of the lawyer’s nonlawyer assistants maintains conduct compatible with the professional obligations of the lawyer. Section 11 of the Restatement (Third) of The Law Governing Lawyers (2000) imposes general supervisory obligations on all lawyers within a firm or legal organization with respect to nonlawyer assistants. See Comment f. Pursuant to MRPC 5.3, lawyers with managerial authority must make reasonable efforts to ensure that there are measures in effect to assure that nonlawyers’ conduct is compatible with the professional obligations of the lawyer.3 Comment [1] to Rule 5.3 provides: legal secretaries, clericals, investigators, law student interns, and paraprofessionals, "whether employees or independent contractors, act for the lawyer in rendition of the lawyer’s professional services“; the lawyer must provide appropriate instruction and supervision concerning the ethical aspects of legal assistants’ employment, "particularly regarding the obligation not to disclose information relating to representation of the client”; the lawyer “should be responsible for [assistants’] work product”; and “measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline.”

Section 60 of the Restatement (Third) of The Law Governing Lawyers (2000) requires that lawyers not use or disclose confidential client information (defined in § 59 as information relating to representation of a client that is not generally known) if a client’s material interests may be adversely affected, and that they take reasonable steps to protect such information from impermissible use or disclosure by the lawyer’s associates or agents. Comment f to § 60 states that “[a]gents of a lawyer assisting in representing a client serve as subagents and as such independently owe a duty of confidentiality to the client.” Comment d to § 60 states in pertinent part (cross- references omitted):

A lawyer who acquires confidential client information has a duty to take reasonable steps to secure the information against misuse or inappropriate disclosure, both by the lawyer and by the lawyer’s associates or agents to whom the lawyer may permissibly divulge it.4 This requires that client confidential information be acquired, stored, retrieved, and transmitted under systems and controls that are reasonably designed and managed to maintain confidentiality. . .

A lawyer must take reasonable steps so that law-office personnel and other agents such as independent investigators properly handle confidential client information. That includes devising and enforcing appropriate policies and practices concerning confidentiality and supervising such personnel in performing those duties.

3. Privileged Matters and Waiver

There are a number of privileges that can be used to protect the EEOC’s work from disclosure in litigation. Communications made between EEOC legal staff and individuals for whom EEOC is seeking relief in litigation are protected by the attorney- client privilege.5 The attorney-client privilege also protects certain communications made between EEOC employees. The work product doctrine protects from disclosure most communications and documents generated by Commission attorneys in anticipation of or during litigation. Finally, the deliberative process privilege shields communications and documents pertaining to the Commission's internal decisionmaking processes.

Disclosure of privileged material to nonattorney EEOC staff, including temporary employees and contract workers, does not waive the privilege,6 but disclosure by such staff to individuals outside the agency could constitute a waiver. See Restatement (Third) of The Law Governing Lawyers § 79 (2000). For example, the attorney-client privilege is waived if the client's attorney or another authorized agent of the client discloses the communication acting under “actual or apparent authority.” Comment c to § 79. Comment c states further that “[w]hether a subagent of the client or lawyer has authority to waive [the privilege] is governed by agency law.” By way of example, the comment states that a file clerk in a law firm would not have implied authority to disclose a privileged communication. Legal units should take a safe approach and assume that all temporary employees and contract workers in the legal unit, as well as the agency's regular employees, have authority to waive the Commission's privileges.

4. Implementing Procedures to Protect Confidential Information from Disclosure and to Prevent Waiver of Privileges

Legal units using temporary employees or contract workers should implement procedures designed to protect confidential information from disclosure and ensure that privileges are not waived. The Regional Attorney, or his designee, must discuss with a temporary employee or contract worker at the time the person begins work, the obligation to keep confidential all information protected from disclosure by statute (e.g., charge or conciliation information) or for which the Commission may assert a privilege. The Regional Attorney must also inform the temporary employee or contract worker that his obligation to maintain confidences is the same as it would be for a permanent EEOC employee and that this obligation continues even after he is no longer doing work for the Commission.

Of additional concern is the possibility that some temporary employees or contract workers were previously employed by law firms who represent clients involved in EEOC matters. In such cases, the Regional Attorney and her staff must be alert to any potential conflicts of interest that may exist due to the person’s prior employment. See ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 88-1526 (1988). The Regional Attorney or designee should specifically instruct all newly hired temporary employees and contract workers to immediately alert an EEOC supervisor to any potential conflicts of interest, e.g., where the temporary employee worked on a client matter during prior employment with a law firm and that client is now involved in an EEOC matter to which the temporary employee may be assigned. The Regional Attorney should specifically caution temporary employee or contract worker that she should not (1) disclose any information relating to the representation of a client of her former employer, and (2) work on any matter on which she worked for her prior employer or on which she has information relating to the representation of a client of her former employer. If the Regional Attorney or her staff become aware of a potential conflict, she must take steps to ensure that the temporary employee or contract worker does not work on matters that she worked on in the prior employment.

When utilizing outside vendors for such functions as photocopying, data storage and retrieval, printing, computer servicing and paper disposal, legal unit staff must ensure that the vendor has in place, or will establish, reasonable procedures to prevent disclosure of confidential information. See, e.g., ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 95-398 (1995) (addressing the ethical implications of an arrangement between a law firm and a computer maintenance company in which the maintenance company would have 24-hour access to the firm’s client files via the firm’s computer network, the Committee found that MRPC 5.3 requires a lawyer retaining an outside service provider to make reasonable efforts to ensure that the vendor will not make unauthorized disclosures of client information and has in place, or will establish, reasonable procedures to protect the confidentiality of information to which it gains access and that it fully understands its obligations in this regard).


1 The terms “temporary employee” and “contract worker” are used in this section of the Manual to include any nonlawyer assistants, including clericals, paralegals, or legal interns, working in an EEOC office on a temporary or contractual basis. Also, experts, private investigators, and other independent contractors doing work outside of EEOC offices often will be acting as agents of the Commission (see Restatement (Second) of Agency § 14 N. (1958) (“One who contracts to act on behalf of another and subject to the other” control except with respect to his physical conduct is an agent and also an independent contractor.”)) and should similarly be advised of the duty to keep information confidential.

2 The professional ethics provisions referred to in this discussion use the terms “client” and “client information” because they address the responsibilities of lawyers and their agents to the lawyers’ clients. These provisions are relevant, however, to the obligations of legal unit staff to ensure the confidentiality of information obtained from or relating to individuals and entities involved in any way in an EEOC investigation.

3 Rule 5.3 states:

With respect to a nonlawyer employed or retained by or associated with a lawyer:

  1. (a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;
  2. (b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and
  3. (c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
    1. (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
    2. (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Rule 5.3(a) applies to lawyers in corporate and government legal departments and legal service organizations who have managerial authority comparable to partners and shareholders in private law firms. Comment [2] to MRPC 5.3, referencing definition of managerial authority in Comment [1] of MRPC 5.1

4 Comment f to § 60 provides that a lawyer has authority to disclose confidential client information to persons assisting the lawyer in representing the client, including employees such as secretaries and paralegals, independent contractors such as investigators and prospective expert witnesses, and public courier companies and photocopy shops.

5 See the discussion of this privilege in subsection D.2. of this section of the Manual.

6 See Restatement (Third) of The Law Governing Lawyers § 70 (2000). Comment g of § 70 provides in part:

A lawyer may disclose privileged communications . . . with appropriate nonlawyer staff – secretaries, file clerks, computer operators, investigators, office managers, paralegal assistants, telecommunications personnel, and similar law office assistants. . . . The privilege also extends to communications to and from the client that are disclosed to independent contractors retained by a lawyer, such as an accountant or physician retained by the lawyer to assist in providing legal services to the client and not for the purpose of testifying.

See authorities cited in the Reporter’s Note to Comment g. See also Comment d to § 73 of the Restatement discussing applicability of the attorney-client privilege to communications to or by agents of organizational clients.