The other day it struck me that airline seats are getting smaller, especially the middle seat. On that certain low-fare airline that provides frequent service between Dallas, Houston, Austin, and San Antonio, I long ago decided that a middle seat in the front is better than an aisle or window seat in the rear. On a recent trip from Dallas to Houston I noticed that there are a lot of business travelers who work on the plane, in full view of everyone around them. There’s always bound to be a couple of spreadsheets opened on a laptop or two, and one time on an international flight I shared a row with a passenger who was working on a complex physics presentation. I am not admitting to snooping, but sometimes a flight can get pretty boring, and sometimes wandering eyes will, well, wander.
This got me thinking about the middle seat in a different light. There’s really no way to work in the middle seat on a client’s case and not have the passenger on either side be able to see what you’re working on. So is working while sitting in the middle seat, or any seat where others may peek at what you are doing, an ethical concern? Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct says that “a lawyer shall not knowingly” reveal confidential information of a client to “anyone else . . ..” Ever since the first week of criminal law in the first year of law school, I see “knowingly” and think something greater than “inadvertently” or “negligently.” So Rule 1.05 seems to say that I am okay working on a client’s case in the middle seat of an airplane, unless I know that my nosey neighbors are peeking over my shoulders. But here’s the thing: if I am curious about what other people are working on, is that enough to give me knowledge that other people are curious about what I am working on? Or do I underestimate how truly uninteresting other people may find my work?
And then maybe whether I can work on a client’s case while sitting on a cramped airplane depends on what kind of case I am working on for the client. Rule 1.05 would cover most of the business disputes, but HIPAA comes into play when the information is “Protected Health Information.” HIPAA’s Privacy Rule protects all “individually identifiable health information” held or transmitted by a covered entity or its business associate, in any form or media, whether electronic, paper, or oral. HIPAA’s procedures are designed to protect from the use or disclosure of Protected Health Information, and a covered entity must obtain the individual’s written authorization for any use or disclosure of Protected Health Information that is not otherwise permitted by the Privacy Rule. Under HIPAA, a covered entity must maintain reasonable and appropriate administrative, technical, and physical safeguards to prevent intentional or unintentional use or disclosure of Protected Health Information. Whereas Rule 1.05 requires that I not knowingly reveal confidential information, HIPAA requires a covered entity to protect against unintentional disclosures of Protected Health Information. Does this mean that I have to approach working on a business case on an airplane differently than I have to approach working on a personal injury case where I will be reviewing medical records? Maybe. Probably.