Whitewater’s Powerful Undertow : Assume They’re Buying the Trash : PERSONAL PERSPECTIVE

Every day, plastic bags full of paper leave my office for the shredder. Almost every day, my secretary takes especially sensitive documents and shreds them herself. Am I paranoid and overcautious? I doubt it. I believe most busy, competent lawyers behave the same way.

As a lawyer, I am in the business of confidentiality, and a client is entitled to feel that his confidences are being protected. If shredding can help with the protection, why not shred?

Sometimes the process can get out of hand, of course. One local attorney instructed his secretary to shred anything sensitive about an important new client. He meant, of course, anything sensitive that was no longer needed. When he returned from court, he found that the entire file had been shredded--including his client’s original documents and, worsestill, the retainer check, which had not yet been deposited.

“It all seemed sensitive” his secretary wailed. In a way, it all was. Only now it was sensitive and gone.

I was first alerted to the necessity of shredding several years ago. I was incredulous. “Buy my garbage? Who’d be dumb enough to buy a lawyer’s garbage?” It seemed unbelievable. “Only about a hundred different guys,” replied my investigator. “How about the supermarket tabloids, for starters. They’d love to get their hands on the stuff about your clients right there in your wastebasket.”

Now I know better. People do buy your garbage. They go through it piece by piece, pushing aside the orange peels and old Kleenex, to get inside information about what you’re doing and, worse, what you’re thinking and planning. They do it in Los Angeles. They do it in New York. And you can bet they do it at the Rose Law Firm in Little Rock, Ark. After all, Clinton-related papers that gave away what they were planning and doing are generally more newsworthy than anything I might discard.

So today I shred regularly. I now assume every piece of paper I throw out is going to be read by some sleazy snooper. What I don’t want anyone to see, I shred.

My practice involves many confidential matters. Roughly 10% to 15% of my clients don’t want it known that they’ve even consulted me. Studio head X feels his job may be in jeopardy. What are his rights? What moves should he make? No one can learn that he’s concerned enough to retain me. Any piece of paper with X’s name on it must be kept in a locked file or shredded. Nothing bearing his name can just be thrown out.

Movie star Y is being blackmailed. We’ve got a plan to handle the situation, but, if the facts get out, his career can be destroyed. Every memorandum gets shredded the day it’s no longer needed. Until then, it’s kept in a locked file. Certainly, it’s not just tossed in the wastebasket.

Every day I open three or four new files. My secretary prepares new case memos for each, so the data can be fed into our computers. The moment that occurs, the memo is shredded. It’s nobody’s business who I represent or what I’m doing for them.

Briefs are a special problem. I’ll go through 20 to 30 drafts of an important brief before it’s filed with the court. Obtaining those early drafts would give the other side a big advantage by revealing in advance my approach to the case. Would opposing lawyers buy my garbage to obtain those briefs? I’m sure they would not--at least not most of them. But their clients or their investigators might. I can’t take the chance. I shred them.

Shredding can, of course, be used improperly. It can be used to destroy evidence beyond recall. But so can an ordinary kitchen match. Ninety-nine percent of the shredding that goes on in law firms is legitimate and is done to protect the clients’ interests.

If there were no shredding, the improper 1% would be destroyed, anyway, only by other means. The shredder simply gives us a more efficient tool. Like a knife or a golf club, it can be used properly or improperly, depending on the intent of the user. But that’s not a reason to regard it as an instrument of evil.

So, when you read that the Clintons’ law firm, where both Hillary Rodham Clinton and Vincent W. Foster Jr. worked as partners, shredded thousands of documents, don’t leap to the conclusion that they were engaged in a sinister cover-up. After all, we don’t know what the shredded documents were. The explanation could well be as simple as that they were trying to protect their clients’ confidential information or to preserve the privacy of a deceased partner from disclosure of personally embarrassing material.