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I'm representing a famous former NLF player, accused of domestic assault. I'm concerned that my client won't pass a drug test, so I send a quick text message: "Heaven help us if one of the conditions is to pee in a bottle." Except I don't send it to co-counsel, as I thought. I send it to the M-F'ing Associated Press.
Who am I? If you guessed fired, you're close! If you also guess Robert Hinton, ex-attorney for Johnny Manziel, the (in)famous former Brown's quarterback, you're right! But as high profile and embarrassing as Hinton's mistake is, such inadvertent disclosures of confidential information are hardly unheard of.
Hinton's text message mistake came after Manziel's legal team was shown a receipt purporting to show that Manziel spent over a thousand dollars at a smoke shop, just a day after he claimed to have been the victim of a hit and run. Concerned over whether Manziel would be able to abide by any court condition imposing sobriety, Hinton sent the fated text -- not to his co-counsel, but to the press.
And it took him a moment to wise up. When asked by the AP if the receipt was legitimate, he said:
I don't know ... I just know that it doesn't say Johnny's name on it anywhere that I can see. It's just that somebody in that store, I guess, circulated that to the other store managers and employees saying "Guess who was here today and spent this amount of money." That's all I know.
Hinton also accidentally revealed that the D.A.'s office was "very interested in working with us to arrive at some agreement."
It's unclear when Hinton realized that he was texting the wrong party, but he quickly withdrew from the legal team once the AP reported the texts.
Inadvertent disclosures like Hinton's aren't uncommon. The use of electronic communication makes it easy for lawyers to accidentally send privileged information to the wrong recipient. Maybe you attach the wrong file to an email with opposing counsel, or send case notes to the wrong email address. Or maybe, like Hinton, you forget to pay close attention to whom you are texting.
In some jurisdictions, if you inadvertently disclose confidential info, you're basically screwed. Opposing parties are free to use the disclosed information however they want. This is the approach adopted by the D.C. Bar, for example.
Many other jurisdictions, however, are more protective, allowing lawyers to "claw back" inadvertently disclosed confidential documents and imposing a duty on opposing counsel to sequester such information and report when it was disclosed.
But those rules haven't prevented the press from running with the story -- and Hinton's error will likely impose major damage on Manziel's case, despite the attorney's claim that the comments are protected by law.
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