Published on February 9th, 2016 by Alan L. Sklover
“Due to the highly confidential nature of my position
even I don’t know what I do all day.”
ACTUAL “CASE HISTORY”: Bart was a highly respected Business Development Officer for a major antiquities dealer headquartered in London. His interests, education and experience all overlapped one another. In fact, he had been fascinated with the antiquities trade – the sale, purchase and barter of ancient artifacts and treasures – as long as he could remember, and remained so to this day.
As part of an expansion of his firm, Bart had been designated to open a new Chicago office because Chicago has a large, vibrant and growing antiquities market. Chicago’s client base, comprised of art institutes, museums and wealthy individuals, was judged to be quite under-served, and so this assignment was posed a significant opportunity for Bart.
Just before relocating with his family to Chicago, Bart was asked to meet with the firm’s Head of Human Resources. Upon arrival, Bart was led to a conference room and asked by the firm’s lawyers about emails he had exchanged six months earlier with an antiquities collector in Rome, who was interested in a particular item of antique jewelry soon to be sold at auction. In his email, the Rome collector asked Bart what he thought would be the minimum acceptable auction bid. Bart’s email response to the Rome collector was that he thought it would be no more than one hundred thousand dollars.
Bart’s estimate of the minimum price was on target, with good reason: it had been decided upon by the firm’s auction department just days earlier, although it had not yet been made public. It now seemed as if Bart was being accused of disclosing confidential information – a very serious policy offense in the antiquities business, which highly prizes secrecy and integrity. Sure enough, Bart was immediately suspended without pay, pending completion of a full investigation by the attorneys. And, too, his relocation to Chicago was placed on hold.
Fortunately for Bart, he had been prudent in preserving emails of others who oversee his work. His review of emails to and from the Rome collector revealed to him that the request was originally sent from the Rome collector to the firm’s Executive Director, who had, in turn, directed it to him, with a note directing Bart to provide that requested estimate. When the Executive Director was asked, and then shown his email to Bart, he then recalled what took place, and for this reason Bart was cleared of the allegation of gross misconduct.
LESSON TO LEARN: Issues of confidentiality of business secrets, confidential information, and proprietary knowledge, are critical career issues. “Loose lips” not only “sink ships,” but they can also “torpedo careers,” as well.
These disputes are definitely on the rise, likely due to three factors: (i) increasingly competitive business conditions, (ii) a growing sensitivity to issues of confidentiality, and (ii) the greater ease and ability of employers’ closing monitoring and surveilling their employees’ communications.
As you may know, there are many companies that sell software that constantly look out for certain words, phrases and numbers in employee emails, texts and other digital communications.
The lessons to learn?
(1) take the time to understand what constitutes “confidential information” at your job;
(2) always keep in the back of your mind the four “situational exceptions” to confidentiality and non-disclosure obligations, explained below; and
(3) take certain simple steps to protect yourself from allegations of improper disclosure.
These three categories of “suggested confidentiality precautions” and – most importantly, the four “situational exceptions” to confidentiality and non-disclosure obligations – are what this newsletter issue is all about.
WHAT YOU CAN DO: To avoid confidentiality issues and pitfalls, keep these questions and answers in mind:
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