As a college student, I dreamed of becoming a sportswriter, a career that would serve as a diversion from the daily stress of the news. Eventually, I settled on law as a profession, and discovered that the world of sports rarely intersects with the world of law. There remain times, however, when sports intrude into the legal arena and offer valuable lessons for attorneys.
None perhaps more than what I call “L’Affaire Colangelo,” the recent social media-based soap opera involving Bryan Colangelo, who is now the former-president of Basketball Operations for the Philadelphia 76ers professional basketball team. Colangelo’s story offers many lessons for attorneys, none more important than its reminder that lawyers and their staff should never share confidential client information with family members or others because such “unguarded talk” can lead to serious consequences, often very serious consequences.
For those who aren’t aware, Colangelo and the team mutually agreed to part ways after a website discovered five Twitter accounts linked to him, or so it seemed. The accounts defended Colangelo’s actions, but also did far more. Therein lie the lessons for lawyers and their staffs.
The Twitter accounts disclosed confidential information about the team and specific players, including information unavailable to the public or other teams, that is, the 76ers’ competition. In addition, the Twitter accounts disclosed confidential medical information about players on the teams, information that was also unavailable to the public or other teams, that is, the 76ers’ competition.
Colangelo claimed to be aware of one of the accounts, but insisted that he knew nothing about the other four, which were the accounts that revealed the sensitive and confidential information. He had a difficult time explaining how all five accounts were de-activated (removed from public view) within minutes after the website called the team and reported that it was aware of two of the accounts and their presumed connection with Colangelo.
After the call, the website released its story, highlighting the Twitter accounts and its revelations. From there, the story became a media circus. The team, of course, hired a law firm to investigate the allegations. And every sportswriter and column in the world, or so it seemed, was investigating the story and offering their opinions on how the team should handle the scandal.
Eventually, the team and Colangelo parted ways. Accompanying that announcement was a statement from Colangelo that said, “While I am grateful that the independent investigation conducted by the 76ers has confirmed that I had no knowledge or involvement in the Twitter activity conducted by my wife, I vigorously dispute the allegation that my conduct was in any way reckless. At no point did I ever purposefully or directly share any sensitive, non-public, club related information with her.”
Although he termed his wife’s actions “a seriously misguided effort to publicly defend and support me,” Colangelo never explained how his wife obtained the information if she didn’t learn if from her husband.
L’Affaire Colangelo offers many lessons for lawyers because, like Bryan Colangelo, lawyers are privy to confidential and sensitive information about their clients, information that they may not disclose without violating the Rules of Professional Conduct.
Consider some examples. It could be a criminal lawyer who reveals to his wife that his client admitted committing the crime for which he was charged. As it turns out, the lawyer’s wife was planning to divorce her spouse and, as part of her revenge upon him, she tells all her Facebook friends about the criminal’s admission of guilt. Or it could be a lawyer who tells her children all about a client’s sensitive medical information, only to discover that one of her daughters is friends with the client’s daughter, and reveals that information to the girl. Or it could be a lawyer representing a major corporation that is trying to purchase a competitor, who boasts to his family about the enormous potential deal, only to see his son brag about his dad’s big deal on Facebook, and therefore to the world. It could also be a staff member trying to impress a friend.
In each example, a lawyer or staff member revealed confidential information to a person not entitled to know about it. Regardless of the situation, the person revealed confidential information whose disclosure could prejudice a client, and whose disclosure violated Rule of Professional Conduct 1.6(a), which prohibits a lawyer from “revealing information relating to representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation.” The rules also require a lawyer to assure that their staff also preserve confidential information.
Comment 2 to Rule 1.6(a) explains that “A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation. … This contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct. Almost without exception, clients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld.”
Some lawyers and their employees, like everyone else, like to talk, or perhaps brag, about their firms’ clients, their influence, or their presumed importance; revealing interesting tidbits is one way to do so, albeit one that can place them in disciplinary hot water. But seemingly innocent revelations are not so innocent when they include confidential information.
That may well be what happened to Colangelo. His tenure in Philadelphia was filled with controversy, and he was not universally liked. It’s possible that he had frustrating days dealing with players and their agents, or was upset about his players’ injuries, and needed to vent. By including sensitive information with his comments, Colangelo may have revealed confidential team information as well as HIPAA-protected information about players.
Even if, as Colangelo claims, his wife was tweeting just to protect her husband, the only likely source of her information had to be her husband, whose poor judgment not only cost him his job, but also endangered relationships between the players and team management. If Colangelo were a lawyer, such revelations would likely signal the end of the attorney-client relationship and the beginning of a legal malpractice claim and possibly Disciplinary Board proceedings.
Breaches of confidentiality come in many forms, from table talk, to publication on the internet. In Office of Disciplinary Counsel v. Wrona, in his first case as primary attorney, attorney Eugene Wrona made untruthful statements in pleadings; he also wrote a letter to the editor of the major newspaper in the area, wrote a press release and posted it on the Internet, and breached confidentiality requirements regarding action before the Judicial Conduct Board. Because of these actions, the Pennsylvania Supreme Court disbarred him.
Colangelo’s fate was sealed when his wife decided to “defend” her husband on the internet, without ever realizing that nothing is truly anonymous online. While the accounts were anonymous, the tipster who revealed the story told the website that revealed it that he used a data analysis tool to link the five “anonymous” Twitter accounts. The tipster noticed that the accounts at times revealed proprietary information that would have been available only to a small number of high-ranking 76ers officials. From there, the website and others connected the dots, which eventually led to Barbara Bottini and her husband’s demise.
Lawyers have an obligation to protect confidential information. That means that they cannot discuss the information with family, friends or anyone outside their firms without client consent. Otherwise, they may find themselves in a fate like Colangelo’s.
Sports are often used as metaphors for life. They also offer lessons about what lawyers and their staff must never do.
Daniel J. Siegel, principal of the Law Offices of Daniel J. Siegel, provides ethical guidance and Disciplinary Board representation for attorneys and law firms; he is the editor of “Fee Agreements in Pennsylvania” (6th Edition) and author of “Leaving a Law Practice: Practical and Ethical Issues for Lawyers and Law Firms” (Second Edition), published by the Pennsylvania Bar Institute. Contact him at firstname.lastname@example.org.