Saturday night, I was returning home from another informative and interesting nerd friend conference. I am sure I will have more to say about that, but for now I am just excited to report there were no travel hiccups whatsoever (my laptop—now with a sticker!—stayed within sight the whole time this time).

My flights were, happily, uneventful. But, because my ethics brain was still buzzing, I couldn’t help but notice the passenger one row up and across the aisle from me on my first leg. Her laptop was on and clearly visible. The brightness on the screen was turned up to what seemed like 10000% against the dim nighttime plane lighting. She had papers strewn about her seat area, too.

In a matter of seconds, and without really trying to, I figured out she was a lawyer. Not only that, I learned what specialty she worked in, what her major upcoming deadlines were, her staffing needs for the next few months, and the fact that she was waiting for a particular federal appellate decision to guide her strategy in her case in the lower court. How did I learn this? Bright screen, high contrast, big font.

I did not say anything—she was a stranger, not my client or colleague, I don’t think this is a situation Rule 4.4 or its Wisconsin counterpart would cover as I did not “receive” any document or ESI; and no, ethics lawyers are not the ethics police and I don’t think a reasonable interpretation of Rule 8.3 would require me to try to learn this person’s name and state of bar admission so I could rat her out.

Still. Although I was watching in-flight TV and not doing anything productive, I understand that client work sometimes needs to happen on airplanes, and coach class in particular* is not conducive to privacy.  Model Rule 1.6(c) (Wisconsin counterpart, SCR 20:1.6(d)) requires lawyers to take “reasonable” measures, not heroic ones, to avoid inadvertently disclosing confidential information. On this flight, turning down the brightness and reducing the font to 12 point may have been helpful (though I acknowledge that may not be a solution for everyone; some may need the larger font and brightness to be able to read at all).

Other measures could include using laptop privacy screens that are designed to restrict anyone who is not right in front of the screen from seeing what’s on it, or sticking to research or other tasks that a fellow passenger can’t connect to a client or matter. Working from paper, if possible, could be another tactic; this passenger had plenty of paper and I couldn’t read anything on that, even in our cramped quarters.

I will say that lawyers and other professionals in jobs requiring confidentiality breach that confidentiality all the time in airports and on airplanes. (I guess, in addition to the imagined spousal exception to Rule 1.6, there is an imagined travel exception, too.) I don’t fly all that often, but just about every time I do, I hear someone discussing patient test results in the gate area or client settlement options from the jetway. I guess some of these things can’t wait, but perhaps a little bit of self-awareness would be helpful too–or, at least, a “hey I’m about to get on an airplane, I’m not in a private space so our conversation is not privileged, can I send this via email from the plane?” diversion (and then, once diverted, use a screen or other measures to avoid broadcasting the email to the other passengers).


*          I used my 15 minutes of ad-supported inflight wifi and made a quick Facebook post about this, and some of my friends suggested she should fly in first class if she wanted to work. Of course, I have no idea what sort of budget she was on or whether she had status with the airline, but even if she had been in first class, that probably wouldn’t have been enough. With that brightness, her screen may have been visible from the International Space Station, and maybe the Chinese balloon if it hadn’t been shot down by then.