My spouse is not a lawyer, but occasionally we run in the same professional circles. He’s had this conversation more than once:
Person: “Hey! How are things?”
Spouse: “Things are well. You?”
Person: “Not bad. I’ve been meaning to tell you, Stacie really helped me out with that grievance last month, so please thank her for me.”
Spouse: “Oh? I didn’t know.”
Person: “You didn’t?! Wow.”
I would like to say that the lawyers reading this understand why I find this conversation so fascinating, but “person” here is usually a lawyer and is still surprised that I didn’t discuss their matter with their friend who happens to be my husband.
If I had to hazard a guess (and I am far from the first person to make a similar guess), Rule 1.6 (governing confidentiality) has the highest violations-to-prosecutions ratio of all of the Rules (or, at least, second after 8.4(c), when lawyers talk about the Tooth Fairy with their kids or how often they floss with their dentist). Why? Because it’s natural to want to debrief your day with your spouse or significant other and it’s hard to avoid discussing specifics. But Rule 1.6 does not include any “spousal exception” to confidentiality; unless your romantic partner works at your law firm or your client has given informed consent for you to speak freely with them, any information relating to representation is off limits.
Some people, even some lawyers, may believe that a spousal or domestic partnership privilege creates an exception to Rule 1.6. But privilege is an evidentiary matter; it doesn’t mean you get to spill other people’s confidences to them. Your spouse may not have to testify against you at the disciplinary hearing, but that doesn’t mean you haven’t violated Rule 1.6 by telling them too much.
I suspect the pandemic may have made this worse, particularly for lawyers who worked from home and had not done so for long periods before. Suddenly, workplace chatter gave way to isolation at home, and you couldn’t walk down the hall to bounce an idea off a colleague. Walking down the hall to bounce an idea off of the people you live with was what was available. (And this doesn’t even get to the confidentiality breaches that happen when you try to make a client phone call in a house with thin walls.)
That said, because disciplinary prosecution is typically complaint-based, discipline involving of 1.6 involving lawyer-spouse communication is rare. I tried to find even one instance in the OLR Compendium, but came up empty (though I don’t know whether it’s because it truly doesn’t exist or because the search engine is lacking). Still, conversations at home typically don’t go beyond home, so nobody knows about it to complain. Do you feel lucky?