This Wisdom of the Crowd (ACC member discussion) addresses concerns and tips for managing attorney-client privilege in an open office environment, under US law. This resource was compiled from questions and responses posted on the forum of the Law Department Management and Small Law Department ACC Networks. (Published December 13, 2013, republished January 30, 2023). The issues discussed include:
I. Issues Associated with Working in an Open Office Environment II. How to Preserve Confidentiality in an Open Office Environment
*(Permission was received from the ACC members quoted below prior to publishing their Forum comments in this Wisdom of the Crowd resource.)
I. Issues Associated with Working in an Open Office Environment
Question:
My company is engaging in some space planning that may involve rearranging office assignments for some staffers. Some of this may affect the legal department. Are there any ethical or audit reasons that would caution against allowing an attorney to have an office in an open or partially open seating (i.e. "cubicle with walls but no door") arrangement?
Wisdom of the Crowd:
Response #1
In one of my prior positions, our building, which was built in the early '60s (1960s), was very aluminum linoleum, tending toward what was then GSA1 modern. When the building was being reconfigured in the early '80s, the lawyers were going to lose individual offices (except for officers) to modern cubes of wood and cloth and open spaces. Our GC took a stand and said that every attorney had to have a private office because of confidentiality. You cannot have phone calls in open areas where you may be negotiating or discussing company confidential matters relating to business plans, litigation, HR, etc. If you have to have a paper file open or your computer file open, you cannot keep going back and forth to a secure office all the time. I would not want to argue "privilege" when the opposing counsel asked if a particular conversation or meeting was in an open space subject to office eavesdropping. You might as well be at Starbucks if you are discussing what are normally legal items in a cubicle.2
Response #2
I had this problem (yes, problem) twenty years ago. The company decided that what makes Japanese automotive suppliers more profitable than their American counterparts must have something to do with putting everyone in a cubicle farm. My problem was that the person on the other side of my cubicle wall was not an attorney nor even a member of the legal department. It was the secretary for the VP of HR, whom you would THINK would understand the words DISCRETION and CONFIDENTIALITY. Nuh-uh. Every phone conversation I had might as well have been had over the public address system. So, yes, while there were conference rooms available, it was completely impractical to say, upon every phone call, "Hello, thanks for calling. Please tell me where I can call you back because I have to wander down the hall and find a conference room so that Suzy Blabbermouth won't repeat every word I will say in the conversation that we can't have quite yet."3
Response #3
I once worked at a European company where, despite multiple, adamant objections from many people to the layout based on confidentiality reasons, only the GC and other officers had offices, and the other in-house attorneys were in cubes. It was an absolutely terrible idea. I would regularly receive confidential telephone calls at my desk on projects that were not to be discussed with anyone in the company, such as M&A, employee claims, against the company, labor negotiations, executive compensation, and stock options for key employees. Every topic you can think of that the executives would not like being widely discussed by all the employees of the company goes through legal, and due to the "open layout," the entire office could hear every word of every discussion. Legal is not like treasury or finance. Employees do not really care about how many millions of dollars some transaction is worth with this subsidiary or that subsidiary in order to gossip about it. They do care very much about compensation, discrimination, and potential M&A where they could lose their job. When one employee hears that this is going on, the news spreads like wildfire, and it ends up being included in a new lawsuit against the company or spreading employee discontent ("Can you believe how much he is making? I work harder than him."). Furthermore, lawyers have doctorate degrees and are bound by professional obligations unlike other department employees. Also, I agree with the point about attorney client privilege made by others.4
Response #4
This issue is arising in more and more companies (and law firms, too) as people move - not only for space/cost reasons, but also for purposes of increasing team collaboration - toward more open floor office plans for all workers, including lawyers. If you read the studies on this, lawyers have always occupied multiple times more space per person in their buildings (whether in-house at the company or outside in a firm) than other professionals, and Response #1's comments are dead on: it was largely due to the perceived need for confidentiality and privilege. But the studies on this (Gensler recently published a significant new survey on this that focused specifically on legal space in companies and firms) also show that almost all new and re-fit building floor plans are moving in this direction, and those who are fighting it are swimming against the current.
There are already many legal departments that have common/open floor space with conference rooms for meetings and offline or confidential conversations, and I don't believe that it's impossible to protect privilege in such an environment. Indeed, while most lawyers have traditionally occupied offices that make it less likely that their files and open-screen computers would not be as easily examined by someone walking by, their administrative and paralegal assistants have always sat in open spaces with the same files and screens open. And many lawyers who are very concerned about protecting privilege in their secured buildings shout confidential conversations into their phones on the Amtrak commuter train or in open-air conversations in restaurants. So having an office with walls may not be as important a tool for privilege and confidentiality protection as having lawyers who exercise good judgment and exercise/follow privilege protocols in their office environments.
Bottom line for me: Whether you have an overall office space that is secure and you follow good practices in terms of protecting privilege or not, it's not dependent on whether there are walls around the place where your personal desk is. In every building - law firm and corporate - there are regularly present other company employees, building maintenance people, couriers, cleaning staff, visitors, caterers and others walking around who are not the lawyer or her client. Even with closed door offices for lawyers, if we're suggesting that the legal standard for privilege protection is that no one who is not the lawyer or a defined client could see or hear something privileged, none of us could say we've protected privilege. So, respectfully, and while we all like having offices, the privilege concern doesn't fly if you have basic security and a conference room for confidential discussions. I think we have to get over it.
It is also worth noting that many of those working in open floor spaces can cite any number of reasons why they now like the set up; it often creates an environment that is far more engaged, collaborative and interactive. It brings them closer to their clients and each other. It is designed to create more workspace like meeting rooms or bullpens where teamed projects can be facilitated more effectively. And in many companies, the desire to minimize square footage in executive offices leads to more opportunities and encouragement for lawyers to work beyond the confines of their offices: with flex schedules and virtual offices, work-from-home policies, more budget for lawyers to spend time with clients in the CLIENT's facilities, and so on. I know a number of in-house counsel who have NO desk anywhere - and they like it that way since they see their job when they're onsite as one that is best accomplished by spending time with other lawyers on the team and with clients with whom they're working on projects. But I know many others who "hotel" in their offices (reserving a space when it's needed - their files and team are all online) or who share a space (office or cubicle) with another lawyer - aka I use the shared desk/office on M/W/F and you're in on T/TH, and if we need another date that's not our own, we reserve a room.
So while I'm sure it will take time to get used to, and while I'm sure that many will miss the benefits of having their own private space, I think that: 1.) this trend is here to stay and will continue to accelerate (time to adapt!), 2.) I don't think privilege protection is really an argument we can continue to make to justify closed office floor plans (as much as it is our preferred tradition), and 3.) there are many benefits that can flow from these changes, too.5
Response #5
Clearly a key element is the overall office design. If the lawyers are in cubes, but the legal cube farm is segregated from the other farms, then the "overhearing" factor falls more to becoming more aware of how loud you are when you're on a call and to simply be courteous about not being so loud as to be disruptive to the other farmers in your cube farm. If your farm is one big happy family, like my prior experience, then it becomes more than just courtesy and now begins to fall into the other problems that others have mentioned about loose ears overhearing stuff they just shouldn't be privy to overhear.6
Response #6
I can state from experience that an open cubicle is the worst possible configuration. I am often on conference calls with attorneys and customers, and the noise level in an open space makes it nearly impossible to hear the other parties. They often ask if I am in a coffee shop or other public meeting place. Although I try to book conference rooms when I have a scheduled call, space is at a premium, and it is a challenge to find quiet, private space. Collaboration is actually worsened since those employees with whom I need to work have to hover over or around my cube; there is no place to sit and talk through an issue without, again, scheduling a conference room. Finally, when I have to read or draft language that is precise and challenging, I can barely concentrate due to all the people talking, walking by, and general noise. I would never work in this setting again; the disadvantages far outweigh the benefits.7
Response #7
Since I was a baby lawyer 20 years ago, I've always worked in cubicles and never had a problem. First, the Legal Department was tucked away in the back of the Accounting Department (who also had concerns about confidentiality) with so much real estate between the two that only other members of Legal could overhear conversations, and we could easily see people approaching and "cover up" if necessary. Then they moved Legal (2 attorneys, 1 compliance officer, and 1 admin) to its own office space with the GC across the hall - again all cubes that gave a certain amount of noise dampening so that we weren't annoying each other. My last company again had us in cubicles on the far side of Accounting with our own area. We had very limited private resources, so only used them when we had sensitive and confidential matters to discuss, such as contract negotiations, employee issues, corporate transactions, etc.
As for privilege, since we are in-house, it belongs to the company, so I don't see how it would be destroyed by employees overhearing conversations. I had greater issues protecting it from forwarded e-mails.8
Response #8
The cubicle debate could center on the type of work being conducted regularly by the impacted attorney. In my in-house department, we communicate daily by phone with all levels of employees and management across states and internationally. Some of what we discuss is privileged, yes, but much of what we discuss is strategic and/or private within our own company. Consider: do you want people not involved in a project overhearing snippets about potential acquisitions, potential downsizing, how to respond to a catastrophe, how to deal with a litigation threat, etc.? Also, I wouldn't want to chill any calls coming in by having to say "Let me move to a private room, and I'll call you back." Calls come in all day, at any time of day, and I think it is important to be readily accessible and able to speak freely with the caller.9
Response #9
It's interesting to read all of the comments regarding the issue of an attorney's office. As I see it, there are three issues: confidentiality, productivity, and respect. Each has a price tag, a cost to the company. If this trend toward cubicles saddles the in-house counsel with additional burdens, then this is merely a mechanism to shift certain capital expenses to the legal department.
For example, I remember when every major law firm had a physical law library. The trend has been away from a physical law library to a virtual one, which saves a lot of money, allowing firms to add lawyers without adding space. The space savings were huge, especially in a downtown high rise. (Not so good for law librarians.)
Over the years, attorney office sizes have shrunk as well. Likewise, I remember when the attorney to secretary ratio was 1 to 1. Many firms are now 4 or 5 attorneys to one assistant. I'm a solo in-house lawyer without an assistant. This is possible because I do my own typing, screen my own calls, and manage my own calendar. Now that I am doing all of this myself, it only makes sense that I move into my former secretary's cubicle. It's a good thing I am a lawyer -- I would make a horrible secretary.
Response #10
I completely agree with the other posts, but I don't think anyone mentioned that lawyers require a quiet place to work. You may want to remind your boss that the nature of the work that we do requires an atmosphere in which we can fully concentrate. Quiet is essential. Further, that s/he should expect that productivity will certainly be adversely impacted and possibly quality if attorneys are working in cubes.11
Response #11
After my previous employer's acquisition by another company, our legal department was placed in an open format with 4 to 6 person pods (imagine a large picnic table with people on opposite sides facing each other with only a monitor separating them). We were allowed a few small "breakout rooms" that permitted us to make conference calls or have meetings. This was often inconvenient because you had to undock your computer and move it to the room if you needed to reference information on it. Your podmates, as well as others in the department, could hear your phone calls, and there was little privacy and even less confidentiality. It was also extremely difficult to review documents with all the background noise, even with the added benefit of the white noise piped through the building. Others in the company, as well as outside vendors, could simply walk up to your desk while you were on an important call or viewing confidential information on your desk or on your computer. Since the attorney-client privilege for in-house counsel is not the strongest, I believe that open environments serve to further diminish this.
Prior to the open environment, director-level attorneys at my previous company were in cubicles with high walls, which I found unusual at the time since I had always had an office prior to taking the job at that company. I must say that I am more productive and better able to maintain confidentiality in the office that I have at my new job. I hope that this helps.12
Response #12
As we all know, the attorney-client privilege does not attach unless the communication between lawyer and client is made in confidence and in the absence of "strangers" to the attorney-client relationship. In the corporate context, "strangers" would include third parties and anyone in the organization neither providing information upon which the attorney has been asked to render advice nor receiving that advice on behalf of the corporation.13
Every executive officer and every administrative officer of every company that I am aware of has an office. Office size and number of windows is a real good indicator of relative worth to the company and size of the paycheck. Begin with the CEO and her office size and number of windows (think corner office) and work down the org chart from there. Eventually you get to offices with no windows and offices with no doors and no offices (ie cubicles). Not very egalitarian, but its the truth. If the CEO, CFO, and COO need to have offices, so does the CLO. And in every company I am aware of, they do. If the company can't afford to provide an office to each attorney, then the company has too many attorneys, or they are hiring attorneys for non-attorney work. The cost of an outside lawyer for 40 hours a week, 50 weeks a year (ie 2000 hour) at $100 an hour is $200,000 a year. How many outside lawyers bill at $100 any hour? Do the math. A company saves a huge amount by hiring a lawyer in-house. The savings and quality only grows with time and experience in the job. What is a law license worth? Is it easy to get into law school? Is graduating law school a simple task? How hard was it to pass the bar? Well, it's not easy. Lots of people can't get into law school; many who can get in don't graduate; some who graduate never pass the bar. What's the old adage, "If it was easy, everyone would be doing it"? If the job can be done by a non-lawyer, then hire a non-lawyer and put them in a cubic[le] and let them do the job. But if the company needs an attorney to do the job, give the attorney an office and let them do the job or go hire an outside lawyer at $300 to $800 an hour. They can save on the office space. But I have to tell you that being a lawyer used to be a well-paid, highly respected, calling - an occupation worthy of an above-average professional income and respect. No offense to those who find themselves practicing law in a cubic[le]; we all do what we have to do to make ends meet for our families. But to those attorneys who are advocating for this, I think you have forgotten who you are.10
II. How to Preserve Confidentiality in an Open Office Environment
Question:
If my company switches from private offices to an open office or cubicle environment, how do I preserve confidentiality and attorney-client privilege in my work and conversations?
Wisdom of the Crowd:
Response #1
In my opinion, conversations held out in the open that would otherwise be privileged may not be if third parties or corporate employees without a "need to know" are likely to be in the vicinity. This point of view does not in-and-of-itself require that attorneys have offices with doors, but it does require that the legal department be physically (or at least "auditorily") segregated from other departments, and that walkways adjacent to the department should not be frequented by persons not in the legal department or upper echelons of management. A conference room reserved for "private" conversations is unlikely to do the trick, since attorneys are not likely to run for the conference room every time they are talking to senior management or collecting information from lower echelon employees necessary to render advice.
A similar analysis would apply with respect to the work product doctrine, but perhaps not with the same force, i.e., it should not be too hard to have attorneys put papers away and lock their computers when they are away from their desks. Encryption software is also often required for computers that store confidential information.14
Response #2
As you note, under ethics rules, attorneys have responsibility to maintain the confidentiality of communications related to the representation of a client. The traditional requirement is expanded under the new ABA Model Rule 1.6(c):
"A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client."
My former employer moved to a no-office environment for all employees - from the CEO on down. We managed the confidentiality issues in the Legal Department in several ways:
The bottom line is that it can work.
My technology companies have had PhD mathematicians and engineers working in cubes and engaged in very confidential and highly valuable work. I don't consider myself more valuable to the company or more entitled to a door than they are. Maybe it's my lack of ego sensitivity, or it's a matter of industry or company culture, but I don't require a private office in order to feel like a respected professional.15
Response #3
My company recently moved to an open office. There are no offices with doors - even the CEO is in a cubicle. I am the only person in the legal department so it's not as much of an issue, but my area is located around a corner near our lesser-used conference rooms. I'm well removed from the general population's corral.
To preserve confidentiality, I conduct phone calls and even short meetings from a conference room. There are also unreservable "phone rooms" for private conversations. My desk area is configured in a way that no one can see my screen, and I keep all my paperwork/physical work product away from passers by. I have a privacy screen attached to my monitor as an additional precaution.16
Response #4
Just a thought, but I have had an office and been in a cubicle at different times in my career. An office is nice because you can close the door to have a sensitive conversation. However, I did not mind being in a cubicle because there was some recognition that there are times when an attorney has to be involved in a sensitive conversation. The few attorneys, who did not have offices, were near a couple of small, non-schedulable meeting rooms, and we all had wireless headsets. So when called, we could simply step into one of the meetings rooms to have our conversation without having to do the call transfers, etc. some were referring to. So I suggest instead of fighting for an office, fight for a couple of small private rooms near you and get yourself a wireless headset. You'll be just fine. In fact, you might kind of like it like I did (makes you feel part of an integrated team member). Offices are a luxury now.17
Response #5
I recently moved from an office into a cube. I sit in a "bullpen" of three cubes, shared by the HR Generalist (who I manage), within the accounting/finance area. We have a dedicated HR/Legal huddle room. We have cones (literally) at the entrance to our cubes to stop people from coming into our area and being able to see what is on our screens or our desks.
It hasn't been as bad as I expected, and it does force me to think about what is actually privileged versus just being comfortable with having a door to close. I do take most of my calls in the huddle room, in part out of courtesy to those around me who probably really don't want to listen to contract negotiations (which aren't even privileged) anyway. So, to make it work, I would recommend thinking about logistics (keeping your area as shielded as possible, having a dedicated conference room, who you are sitting near) as well as technology (making it easy to transfer calls into a conference room, being the only person/group who can reserve your huddle room).18
The area containing the legal department required card key access separate from card key access to the building generally. There were several small conference rooms available - some as small as 10x10. There were several closet-like phone booths into which attorneys and paralegals could retreat for confidential telephone calls. Attorneys and paralegals were provided "secure" wireless headsets (you'll need to convince yourself of the "secure" part) to facilitate their ability to quickly walk into a phone booth or conference room. Attorneys and paralegals were cautioned about leaving confidential materials exposed on computer screens and desktops, including use of password protected screen savers. Attorneys and paralegals were provided cabinet space in which to lock up materials. More flexibility was permitted for attorneys and paralegals to work from home (e.g., if they were going to be on extended conference calls about confidential matters). The machine-generated "white noise" was increased in the area
1 General Services Administration
2 Response from: Stuart Senescu, Attorney, Highland Park, Illinois (Small Law Departments eGroup, Oct. 23, 2013).
3 Response from: Laura Vogel, Assistant General Counsel, Dearborn, Michigan (Law Department Management eGroup, Oct. 24, 2013).
4 Response from: Peter Schreck, Senior Corporate Counsel - Americas, Flint Group, Plymouth, Michigan (Small Law Departments eGroup, Oct. 24, 2013).
5 Response from: Susan Hackett, CEO/CLO, Legal Executive Leadership, Chevy Chase, Maryland (Small Law Departments eGroup, Oct. 24, 2013).
6 Response from: Laura Vogel, Assistant General Counsel, Dearborn, Michigan (Small Law Departments eGroup, Oct. 25, 2013).
7 Response from: Lynn Gallivan, Attorney, Avalara, Bainbridge Island, Washington (Small Law Departments eGroup, Oct. 25, 2013).
8 Response from: Bonnie Uphold, General Counsel, DPI Specialty Foods, Ontario, California (Small Law Departments eGroup, Oct. 24, 2013).
9 Response from: Jennifer Rafferty, Assistant General Counsel, Titan America, Norfolk, Virginia (Small Law Departments eGroup, Oct. 25, 2013).
10 Response from: Jordan Gray, Senior Vice President, Compliance and Legal Affairs, WNC Insurance Services, South Pasadena, California (Small Law Departments eGroup, Oct. 25 & 27, 2013).
11 Response from: Kenneth Coronel, Chief Legal Officer, Verisys Corporation, Alexandria, Virginia (Small Law Departments eGroup, Oct. 28, 2013).
12 Response from: Monica Johnson, Vice President and General Counsel, Shoes for Crews, West Palm Beach, Florida (Small Law Departments eGroup, Oct. 28, 2013).
13 Response from: Mary Doyle, Redwood City, California (Law Department Management eGroup, Oct. 25, 2013).
14 Response from: Mary Doyle, Redwood City, California (Law Department Management eGroup, Oct. 25, 2013).
15 Response from: James Brashear, General Counsel and Corporate Secretary, Zix Corporation, Dallas, Texas (Small Law Departments eGroup, Oct. 31, 2013).
16 Response from: Laura Schniedwind, Legal Counsel, DCG Systems, Fremont, California (Law Department Management eGroup, Oct. 24, 2013).
17 Response from: James Schindler, Senior Corporate Counsel, Masimo Corporation, Irvine, California (Small Law Departments eGroup, Oct. 25, 2013).