Don’t Write it, Say it

Note to law firms: you need to go Battlestar Galactica.

Now that Edward Snowden has revealed that the National Security Agency has helped itself to communications between a law firm and a foreign client, lawyers need to know how to stay off the grid.

You have a duty to protect your clients' secrets from implacable, conscienceless inhumans who pay no heed to the laws of humanity.

Merely suing the government will do you no good.

How can you fulfill your ethical duty to clients?

The Battlestar solution - keeping your out-of-date computers isolated from any network - is a good start. All you have to do is build your own computers, design your own operating system, write in-house uncontaminated programming, and insulate the walls so there is no wi-fi penetration.

Then install a Cone of Silence for client consultations.

I also recommend placing your firm in a warship capable of rapid interstellar travel.

If all this is impractical for your practice, consider workarounds. For example, use a language that only you and your clients understand.

Many of your clients, particularly the sociopaths and those in need of conservatorships, may already have such a language.

Another possibility: Do not prepare for trial. It may be the only way you can take anyone by surprise.

Improv classes will help if you go this route.

But let's suppose that none of these practical suggestions work. How should a lawyer handle a world where absolutely nothing may be confidential?

TMI.

I've offered this advice before and it's becoming more practical. Advise your client to flood the Internet with complimentary and/or confusing information. Reports of large donations to obscure charities are a nice touch.

If you can't hide the truth, you might as well surround it.

An upside? There is some upside to computer vulnerability.

The obvious one is employment for lawyers in litigation after a data breach. And the litigation after the data breaches attorney-client material during the litigation over the original breach. And then the litigation ....

You get the idea.

There's also the chance for a lucrative career change for all the lawyers out there who can't find lawyering work.

This is from an article posted by CorporateCounsel.com on cyber threats: "(T)he level of unemployment in the cybersecurity field is around zero, but threats are still getting more numerous and more complicated."

It's a growing field ready for an influx of law grads.

Another alternative. If you can't say something nice, don't put it in writing.

This is rather of obvious, but considering what I keep seeing in litigation, you need to tell your clients to insult employees personally.

Emails are impersonal and they show up in discovery and NSA records.

Recent case in point: a ruling from the 6th Circuit called Shazor v. Professional Transit Management that quotes email after email.

These people might as well have been preparing the transcript for future litigation.

This is from the ruling: "Plaintiff's purported direct evidence consists of the numerous e-mails between Setzer and Scott in which they speak of plaintiff in less than flattering terms, including calling her a 'prima donna,' disloyal, disrespectful, and a 'hellava bitch.'"

Imagine how much better everyone would have felt if they'd said those things out loud - and then denied saying them.

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