Not sure if this is the right forum.. but need help!

[ErinGoBragh]

What is the name of your state (only U.S. law)? NY

I'm sorry, because this involves 3rd parties, but me as well, and I'm not technically sure if this is the right forum.

I subcontract occasionally in my job capacity for the law firm of distant family member who does legal work as an attorney. Over the course of the years, I, my mother, and my siblings have gotten legal work from this office; nothing serious, mostly stuff involving traffic infractions and the like, but there WAS a messy custody case handled by the attorney for my middle sibling, and the office also handled my parents divorce back years ago.

An employee of the firm (not an attorney, someone in an administrative capacity) was doing a number of things involving mismanagement of office resources that led to their termination. In in my capacity working for the office, I was one of the people to bring some of these things to the attorney's attention. On the former employee's termination, the former employee took a new job at another place. My middle sibling took over the former employee's job duties at the office, as my middle sibling has also done some work for the office in the past and was asked to do such when the office found themselves now without a job filled. Ironically, the former employee then took a job working for a friend of my middle sibling, none of which was known to us at the time.

My middle sibling got a call from a friend, HIGHLY irate, because the former employee had come into their new job, using full names, discussing how insane the attorney and their (my) family was. The former employee went in very detailed history into the matters that my family and I have utilized the office for, in front of not only this friend of my sibling, but every other employee present at the former employee's new place of business at the time. That friend then called my sibling to inform them of what had occurred.

Needless to say, we are all taken aback. These matters, while mostly minor, also included some very private details about things that happened to my siblings and I during the course of our parents divorce, which was also handled by this office, not to mention my middle sibling's custody case. These are things I never have breathed to any other living persons, aside from a past hearing I had to participate in during the divorce in addition to counseling sessions. The same is true of the majority of what was said of my siblings that has us all so completely taken aback.

Obviously, the firm is not to blame for this. This is not technically libel, as it is generally true information, but it was also only known by the former employee because of the nature of attorney-client privilege in the office. I'm not so sure I'm interested in pursuing a suit against the employee- I'm still on the fence- but my siblings damn sure are. Is it an option for them, and maybe all of us, to jointly or separately go after JUST this employee?

I am sorry for the complexity of terminology as I am trying to be vague and protect the attorney in question, but I could REALLY use some advice. I don't wish to speak with the attorney directly about this at this point, because this is not their expertise, but they are aware of and mortified by the situation.

 

[Mass_Shyster]

This would come under legal ethics. The New York Rules of Professional Conduct prohibit this type of behavior.

The current and prior employers, both being attorneys, should be aware of their responsibilities for their employee in regards to confidentiality of information.

This is covered by rules 1.6 and 5.3 of the Rules of Professional Conduct in New York.

At a minimum, the current employer should be made aware of this breach of confidentiality.

It's not slander or defamation if the statements are true.

 

[ErinGoBragh]

This would come under legal ethics. The New York Rules of Professional Conduct prohibit this type of behavior.

The current and prior employers, both being attorneys, should be aware of their responsibilities for their employee in regards to confidentiality of information.

This is covered by rules 1.6 and 5.3 of the Rules of Professional Conduct in New York.

At a minimum, the current employer should be made aware of this breach of confidentiality.

It's not slander or defamation if the statements are true.

Thanks Steve.

The friend in question who notified the middle sibling is the current employer, and is, obviously, aware. The former employee's new job is in a totally different field from legal though, which would not involve any such confidentially concerns.

My personal concern after having some time to stew about this- not speaking for my siblings- is that I want this behavior to stop. Immediately, by any means necessary- be it a suit or another legal action. Owning a business right now is a hardship, and I am looking to get steady employment as soon as possible. Right now, EVERYONE is a potential employer.

This employee is running around stating things to apparently anything and anyone with our full names attached, and I think that this could potentially be damaging not only to my business now, but also to my career, if the right person was to hear- and this is a relatively small community, and people tend to judge others on things, even if they aren't their fault.

I don't know if I can get what you want- like the Rolling Stones say- but any suggestions anyone has, I would be more than open to, so long as they are legal.

 

[Mass_Shyster]

Go to your employer and let him know that his former employee has breached her duty of confidentiality, and if it doesn't stop, you will file a complaint with the bar association (or whomever enforces the rules in NY)

 

[ErinGoBragh]

Go to your employer and let him know that his former employee has breached her duty of confidentiality, and if it doesn't stop, you will file a complaint with the bar association (or whomever enforces the rules in NY)

They are aware, but have a major trial this week, so they are saying nothing can be done about this until next week. One possible solution I was thinking of would be confronting the former employee myself via e-mail to stop the spread before then, but I am concerned about the ramifications of this and the wisdom of it.

 

[quincy]

Erin, did the former employee have a contract or a signed agreement with the attorney that included a nondisclosure provision or confidentiality provision? I would be sort of surprised if he didn't.

NY DR 4-101(D) requires that lawyers "exercise reasonable care to prevent his or her employees. . .from disclosing or using confidences or secrets of a client" and the NY attorney ethics code says that attorneys have a duty to ensure that even their non-attorney employees protect client confidences. The code also provides that "The obligation to protect confidences and secrets of clients continues after termination of employment" (NY EC 4-6).

"Confidential information" goes beyond secrets told - almost everything that an attorney learns from or about a client is considered confidential and protected by attorney-client privilege.

Now, some problems. The professional rules and ethics codes apply to attorneys. The burden generally falls on the attorney to prevent an employee or associate from misusing client information and disclosing confidences, this through careful hiring and then through careful supervision of the employees and associates. The client's information should further be protected after an employee's termination through a contract clause (or a severance agreement).

Because you and your siblings want to focus your attention on the former employee and not on your sibling's current attorney/employer or the former employee's current attorney/employer, and because New York is one of the few states in the country that does not recognize the invasion of privacy tort, publication of private facts, and because this is not a defamation issue, you may need to focus on any nondisclosure provisions of the contract the former employee (hopefully) signed.

You Are Guilty is an attorney in New York and I will PM him so that he can take a look at your posts here. He probably has an idea other than the violation of a nondisclosure clause of a contract that can possibly be used against this former employee to stop the flow of your family's private information to others. New York laws are a bit of a puzzle to me.

I tend to think that communicating with this ex-employee by email is not the best idea. I do not think you want to put anything in writing at this point, not without consulting with your sibling's employer (or another attorney) first.

Wait for YAG.

 

[You Are Guilty]

You rang?

Interesting issue, enough to warrant some actual research to see if there is any real liability here. The initial problem, as I see it, is the rule of attorney responsibility for staff, is limited to current employees, at least as written. Of course, given the intent of the rule, it might have been interpreted otherwise.

Which then begs the question, how is an attorney supposed to "supervise" or "control" a former employee, presumably, one who holds a grudge? Perhaps a NDA agreement, but can the client then force the attorney to sue to enforce it? (Doubtful, even if the client can convince the court it is a third-party beneficiary).

At best, it would likely be an ethical violation, which, incidentally, would only result in some reprimand to the supervising attorney - they cannot do anything to the ex-employee, nor can they force the attorney to do something (other than stop practicing, that is). A quick search found nothing on point, but here is an Ethical opinion from 1979 which makes an interesting jumping off point:
http://www.nysba.org/AM/Template.cfm?Section=Ethics_Opinions&TEMPLATE=/CM/ContentDisplay.cfm&CONTENTID=18475
(#501)

The index to the remainder of the opinions can be found here:
http://www.nysba.org/AM/Template.cfm?Section=Ethics_Opinions&CONTENTID=10546&TEMPLATE=/CM/ContentDisplay.cfm

but I think a full on Lexis/Westlaw search will be needed for more substantive answers.

 

[ErinGoBragh]

Thank you to both YAG and Quincy- I'm checking back after doing some work with the attorney in question all weekend to try to mend up some of the trouble the former employee left behind.

I spoke with the attorney, and the employee never signed an NDA. The attorney verbally told the employee, again and again, of the importance of confidentiality with clients, but for reasons I will never know, did not have the employee sign anything. They are going to implement this with all current and future employees, as well as putting into place some other standard operations that I am recommending in my capacity as a subcontractor who deals with the physical security of information.

Stealth and YAG both, I read and understand what you are saying. I don't have access to Westlaw or Nexis- which are both paid services, as I understand- in my capacity at the office, so I will unlikely be unable to investigate that further, although I will check with my school to see if I still have access to Lexis-Nexis there.

As far as the onus being on the employer, while I think that the attorney should have had the employee sign an NDA, it sounds like even in that case, the attorney would still be mostly liable, which isn't what I'm looking for. I don't want to hurt my employment status- or the attorney personally- by chasing this if it's something that won't really compel the employee to stop talking, and would further damage the reputation of the attorney more than it already has been by this idiot, or have them suffer, when in my mind the employee is primarily to blame. I realize that this may in effect force me to make a choice between my public reputation or my allegiance to my client, and as foolish as this may sound, I will go with the client in the end. They themselves have been quite good to me over the years, and I do not feel that it would be right to "burn" them in any way.

That aside, reading the opinion of the court in the case you provide, it appears that at least in that legal matter, this employee would themself be liable, even not as an attorney, to not divulge any information that they came into while employed in the capacity of support staff for the attorney. However, to be perfectly honest, I only went to school for Criminal Justice for two years, so I am unsure of what the practical application of such a ruling would be.

The worst part of this is that the employee is now reportedly sending e-mails to at least one individual (and I would be willing to bet more) beyond the previously mentioned current employer, and this individual contacted the office to let the office know what had occurred. The attorney is still stating their intention to "deal with" the former employee tomorrow, but the weekend has passed and I am worried about the damage that has already occurred, and may be yet to come.

 

[quincy]

Okay, I am going to toss this out and I have no idea if this can be applied in any way to your situation, Erin. Perhaps YAG can once again jump in with his thoughts and ideas as to whether this could possibly work in, if not an actual lawsuit, a cease and desist letter, as a viable threat to sue.

Even a threat to sue, if the suit can be shown on its face to have some merit, may be enough to curtail the actions of the ex-employee.

The idea, which I present based entirely on the article cited below, is to use New York's Consumer Protection laws to support a claim against the former employee for her violation of a "pledged" promise to maintain the confidentiality of information provided by the attorney's clients. The Consumer Protection laws could perhaps fill the "invasion of privacy/publication of private facts tort" void in New York law.

Lawrence Friedman (Stanford Law professor, lecturer at Harvard Law, Adjunct Professor of Law at Boston College.....the list goes on and is extensive and impressive ) addressed privacy violations in an article available for reading at http://hofstra.edu/PDF/law_lawrev_friedman_vol31no3pdf.pdf.

In his article, "Establishing Information Privacy Violations: The New York Experience," Friedman dissected the NY Supreme Court Appellate Division decision in Smith v Chase Manhattan Bank, 741 NYS 2d 100, 102 (NY App Div 2002) and New York's Consumer Protection law.

The idea, introduced by Friedman, is possibly best summarized by this statement made by Deborah G. Johnson in her "Computer Ethics 127 (3d ed 2001) and, again, this quote was taken from the article cited above: Information privacy is a "social good in its own right and more important than other social goods such as efficiency and better consumer services."

What could be argued, potentially, is that the ex-employee's failure to maintain her pledge to protect the confidential information of the attorney's clients breached the oral agreement between her and the attorney. The actual harm suffered would be the compromising of private information. The breach by the ex-employee can be expanded to show how such a breach by a former employee can affect all "consumers" of attorney legal services by misrepresenting that the privacy of the consumer/client will be protected. Therefore, to deter such violations in the future, to prevent unfair and deceptive acts or practices by all legal professionals, it is important to redress the harm suffered through an award of damages and injunctive relief.

From Friedman: "When privacy is promised and then compromised in consumer transactions, consumer protection laws, like New York's, provide a viable means through which the deception can be addressed and in the future deterred."

At any rate, if there is any way an action against the ex-employee can fly through the Consumers Protection law in New York, it may be worth at least a "threat to sue" presented in a cease and desist letter sent to the ex-employee, and sent on attorney letterhead for the greatest effect.

So, YAG, what do you think?

Oh, Erin - a question: Is there anything at all that has been communicated by the ex-employee that is false or implies any false facts about you or your family members? A defamation action may not be entirely out of the question, if false facts are implied.

 

[ErinGoBragh]

Okay, I am going to toss this out and I have no idea if this can be applied in any way to your situation, Erin. Perhaps YAG can once again jump in with his thoughts and ideas as to whether this could possibly work in, if not an actual lawsuit, at least a viable threat to sue issued in a cease and desist letter.

Even a threat to sue, if the suit can be shown on its face to have some merit, may be enough to curtail the actions of the ex-employee.

The idea, which I present based entirely on the article cited below, is to use New York's Consumer Protection laws to support a claim against the former employee for her violation of a "pledged" promise to maintain the confidentiality of information provided by the attorney's clients. This could perhaps fill the "invasion of privacy/publication of private facts tort" void in New York law.

Lawrence Friedman (Stanford Law professor, lecturer at Harvard Law, Adjunct Professor of Law at Boston College.....the list goes on and is extensive and impressive ) addressed privacy violations in an article available for reading at http://hofstra.edu/PDF/law_lawrev_friedman_vol31no3pdf.pdf.

In his article, "Establishing Information Privacy Violations: The New York Experience," he dissected the NY Supreme Court Appellate Division decision in Smith v Chase Manhattan Bank, 741 NYS 2d 100, 102 (NY App Div 2002) and New York's Consumer Protection law.

The idea, introduced by Friedman, is possibly best summarized by this statement made by Deborah G. Johnson in her "Computer Ethics 127 (3d ed 2001) and, again, this quote was taken from the article cited above: Information privacy is a "social good in its own right and more important than other social goods such as efficiency and better consumer services."

What could be argued, potentially, is that the ex-employee's failure to maintain her pledge to protect the confidential information of the attorney's clients breached the oral agreement between her and the attorney. The actual harm suffered would be the compromising of private information. The breach by the ex-employee can be expanded to show how such a breach by a former employee can affect all "consumers" of attorney legal services by misrepresenting that the privacy of the consumer/client will be protected. Therefore, to deter such violations in the future and prevent unfair and deceptive acts or practices by all legal professionals, is to redress the harm suffered through an award of damages and injunctive relief.

From Friedman: "When privacy is promised and then compromised in consumer transactions, consumer protection laws, like New York's, provide a viable means through which the deception can be addressed and in the future deterred."

At any rate, if there is any way an action against the ex-employee can fly through the Consumers Protection law in New York, it may be worth at least a "threat to sue" presented in a cease and desist letter sent to the ex-employee, and sent on attorney letterhead for the greatest effect.

So, YAG, what do you think?

Oh, Erin - a question: Is there anything at all that has been communicated by the ex-employee that is false or implies any false facts about you or your family members? A defamation action may not be entirely out of the question, if false facts are implied.

Quincy, your idea would be fantastic if it's feasible. My hope would be that a C&D letter could actually shut this woman up, which would be just my intent.

Also, as far as I know, everything I know has been either true or open to interpretation (We're crazy, I'm a bitch, blah blah blah). So nothing that really falls under defamation in any way. As I said, it's just information that's not open for public ears, like specific details of some abuse that occurred when I was a child, in addition to every single thing my sisters and I have obtained an attorney for.

Thanks again.

 

[You Are Guilty]

Nothing wrong with a C&D letter, but the breach of an oral promise theory probably won't fly - you have a big Statute of Frauds problem Would former employer attorney be willing to compose said C&D? (No sense worrying about further action if a nasty-o-gram is all that's needed).

Ultimately, to the extent they do anyone, the current rules will only end up punishing the attorney, not the ex-employee. If I have time this week, I will jump on WL and see if I can find anything useful. In the meantime, if you can somehow show "economic harm", you probably have a good shot at a prima facie tort argument (http://ftp.resource.org/courts.gov/c/F2/673/673.F2d.37.81-7395.81-7305.201.271.html - I know it's 2nd Cir, but it has a nice history and explanation of the requirements).

 

[quincy]

You know, YAG, it would certainly make life a whole lot easier if New York just recognized invasion of privacy torts like almost every other state in this country.

 

[You Are Guilty]

Everybody has their quirks. At least the 9th is still worse

 

[ErinGoBragh]

Update!
The attorney went ahead and mailed a C&D letter to the former employee. Instead of scaring the former employee, they have stepped up running their mouth off about the practice and all of us associated with it, according to the friend who is employing the former employee, despite the fact that the friend has told the employee that they need to cut it out.

Not really sure what to do, but I'm fuming. This person is an idiot, and it appears that I really have no recourse against the employee, and I still have no interest in pursuing anything that may sanction the attorney, since they really are a good person and have been trying to resolve this.

 

[quincy]

Aw, geez. A former employee from hell.

New York is a tough state, as there are no laws that address your issue adequately, especially when you cannot demonstrate "actual" damage.

I looked briefly at "intentional infliction of emotional distress" claims in New York and your situation does not appear to meet the elements required - and these suits are rarely successful anyway. A possible avenue you could explore is to file an harassment complaint against the employee, and You Are Guilty may know better if this is a realistic option for you.

Under New York's Penal law, section 240.26(3), harassment is a second degree violation when, with the intent to harass, annoy or alarm, a person "engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose."

Perhaps where a cease and desist letter has failed, a police complaint and investigation may not?