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What Happens When Lawyers Leak Information?

By William Vogeler, Esq. on June 13, 2017 | Last updated on March 21, 2019

It wasn't news when James Comey told the Senate that he leaked a memo to the press; the information had come out a month earlier when he was fired.

But his admission raised issues about confidentiality that have polarized parties and legal pundits. When President Trump told Comey that he expected loyalty about the Russian investigation, what exactly did he expect from the FBI director and former U.S. Attorney?

And what happens when attorneys leak such information? Is it against the law?

Comey's Case

Leading up to his firing, Comey testified that he gave notes of his conversations with the president to the New York Times. Comey said the president was suggesting he stop an investigation in the growing Russia scandal.

After his testimony, lawyers lined up to offer opinions about the issue. Georgetown law professor Jonathan Turley said Comey's defenders were redefining America's law on leaks.

"Comey was wrong to leak the information to the media," he wrote.

Other experts said the president could have claimed a privilege but he waived it. Walter Dellinger, a former White House attorney, noted that the memos belonged to Comey.

"These were unclassified notes made by Comey himself," he said. "I know of no legal bar to his releasing them to the press."

Counsel's Case

For those lawyers not representing the President of the United States, there is a similar complication in confidentiality when representing an organization or a company.

Andrew B. Serwin and Jessica N. Pandika, writing for the American Bar Association, said it is a difficult question when an agent of the company has a conflict.

"It is apparent that from the beginning of the representation, the needs and interests of the organization are defined and communicated to the lawyer by one or more individuals acting on behalf of the entity," they said. "Although this may seem obvious in theory, the line between the organization and the individuals can sometimes be easily blurred in practice."

Rules may vary, they said. California's Rule 3-600 and the ABA's Model Rule 1.13(c), for example, impose different duties of disclosure when a lawyer perceives a substantial injury to the entity.

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