Johnny Manziel's Lawyer's Mistake Is More Common Than You May Think

One of Johnny Manziel's lawyers just experienced one of a lawyer's worst nightmares. He attempted to send a confidential text message to another member of Manziel's legal team, but sent the message to the Associated Press by mistake. The message concerned sensitive issues relating to ongoing plea negotiations, including the lawyer's candid assessment of Manziel's ability to abide by any condition that would require him to stay drug-free.

Reactions were swift. Manziel's lead attorney denied that Manziel had any interest in a plea deal, and a spokeswoman described the lawyer who had sent the message as having "always operated on the periphery of this case." Shortly thereafter, that lawyer withdrew from the team. The story has understandably spawned plenty of derision, but the lawyer's mistake wasn't as unusual as it might seem.

Client confidentiality is a huge issue for lawyers. The law understands that clients and lawyers need to share honest, sensitive communications whose revelation to third parties could be devastating. Many different legal rules are in place to protect these communications. Evidentiary privileges protect lawyers and clients from being forced to divulge their private communications in court, and ethical rules strictly prohibit lawyers from sharing client confidences with others.

Because the consequences are so severe, lawyers don't often disobey these rules -- at least not intentionally. Occasionally, though, there's an "inadvertent disclosure" of confidential information. Especially in the present age, where communications and data are regularly generated, stored and transmitted electronically -- with every one of us being one auto-complete away from torpedoing a case through an error like the one here -- such disclosures are actually surprisingly common.

(It happens in the other direction too. Several years ago I was getting ready to argue a case before an appellate court, and a few days before the argument I got an email from my client's mother, telling me how I needed to get ready to polish the floors. At first I thought she was speaking metaphorically, as some kind of motivational tactic for the upcoming argument. But as I kept reading the email, I came across a number of details -- the type of polish to use, the dimensions of the room, etc. -- that sounded weirdly specific for a metaphor. It took me longer than it should have to realize that she had intended to email her contractor, but that her email had autocompleted to my address.)

Many jurisdictions have specific rules in place for dealing with inadvertent disclosures. The "old-school" approach is basically a "tough luck" message -- if a lawyer slips up and gives the adversary something confidential, the adversary can use it however she sees fit (in the court case, in the media or in a centerpiece at the firm's Christmas party), and if the client finds this unfair, he should have hired a more careful lawyer. On the other end of the spectrum, many jurisdictions have a highly protective approach. Under these more forgiving rules, a lawyer receiving something that she should recognize as an inadvertently sent confidential document has a duty to sequester the document without looking at it, inform the opposing lawyer, and ask how she should proceed.

Even under these more protective rules, inadvertent disclosures can have catastrophic consequences for clients -- as illustrated in Manziel's case itself. Confidential information can be damaging even if the opponent is never allowed to use it as evidence. For example, negotiation is often a critical part of a lawyer's work, and in almost every negotiation (inside or outside of the legal system) the parties want to keep their true plans and positions secret. For example, if I'm offering my truck for sale for $10,000, you might like it enough that you'd be willing to pay that full price, but you may want to make an opening offer of $7,500 to see if you can get my price down. If I learn that you'd be willing to pay $10,000, there's no reason for me to accept any lower offer.

The same principle holds true in criminal cases such as Manziel's. Regardless of how the legal team will try to portray what happened, the revelation of this internal communication will send a signal to the prosecution about what Manziel's bottom line will be, and that could well decrease his negotiating leverage. We'll have to wait and see how the case turns out, but we can be sure of at least one thing -- across the country, thousands of lawyers are breathing grateful sighs of relief that it wasn't them, and spending an extra few seconds checking "to" and "cc" fields before hitting "send."