Writer Enjoined from Publishing Stories Based on Contractually Confidential Material Learned While Working as a Law Student Intern

From Louisiana Crisis Assistance Center v. Marzano-Lesnevich (E.D. La. Nov. 23, 2011):

Alexandria Marzano-Lesnevich served as an unpaid summer law clerk at the Louisiana Capital Assistance Center (“LCAC”) while she was a law student at Harvard University in 2003. LCAC is a nonprofit organization providing legal representation to indigent capital defendants. As a summer law clerk, she investigated the facts of assigned cases, conducted case analysis, drafted memoranda, managed client correspondence, and attended meetings where attorneys discussed case strategies for specific clients.

After graduating from law school, Ms. Marzano-Lesnevich pursued a career as a journalist and writer in lieu of a legal career. Nonetheless, her legal training has informed her writing, as she has published several essays relating to her experiences and dealing with the death penalty and sex crimes. Among her published works is an essay titled In the Fade, which was published in the Spring 2010 issue of a journal called The Bellingham Review, and an essay entitled Longtermer’s Day, which was published in a nonfiction periodical entitled Fourth Genre in 2010. Ms. Marzano-Lesnevich also published copies of these works, along with several other fictional works, on her personal website. In the Fade is a creative nonfictional description of the criminal prosecution of an LCAC client named Ricky Langley for the sexual assault and murder of a six-year old boy in Calcasieu Parish, Louisiana. Longtermer’s Day is a stylistically similar account of the author’s experience visiting Angola Prison and conversing with prisoners. It is these works, along with a forthcoming but yet uncompleted novel, which are at issue in this suit.

The director of LCAC, Richard Bourke, first discovered the existence of these works in 2001. Believing that they contained confidential client information, he directed his staff to contact Ms. Marzano-Lesnevich and request that she withdraw her works from publication, as well as to cease from disclosing any other confidential information relating to LCAC clients. In the meantime, he also contacted the Bellingham Review to request removal of the essay In the Fade from its website. It complied with this request in an effort to avoid litigation. These efforts eventually led to a conference call with Ms. Marzano-Lesnevich and her retained counsel. During the conference call, Ms. Marzano-Lesnevich informed LCAC that she did not believe that any of the information in her published essays was confidential. She also informed Mr. Bourke and LCAC that she was in the process of writing a novel relating to her experiences as a LCAC law clerk and planned to seek publication upon the work’s completion. [Footnote: Ms. Marzano-Lesnevich describes the book as a “literary work– part memoir based on her own experience as a victim of sexual abuse, and part literary journalism about the criminal prosecution of Ricky Langley for sexually assaulting and murdering a six-year old boy in Calcasieu Parish.” The work reportedly deals with essentially the same subject matter as her essay In the Fade.]

LCAC subsequently [sued], alleging breach of fiduciary duty and breach of contract, and seeking injunctive relief prohibiting Ms. Marzano-Lesnevich from future disclosure or dissemination of confidential or privileged information obtained in the course of her summer clerkship, as well as other information relating to LCAC clients which disadvantages or prejudices those clients.

Marzano-Lesnevich filed a motion under the Louisiana anti-SLAPP law, which lets defendants who are sued based on their speech get an early victory if they can show that the plaintiff isn’t likely to succeed. But the court agreed that LCAC was likely to succeed in showing that Marzano-Lesnevich promised not to reveal client confidences, and that Marzano-Lesnevich’s works likely revealed such confidences. (The court found it unnecessary to reach the breach of fiduciary obligation argument.) The court thus denied Marzano-Lesnevich’s motion; presumably at some point soon LCAC will itself move for a preliminary injunction, and the court will decide whether to order Marzano-Lesnevich not to reveal confidential information in the future.

I’m inclined to say that a permanent injunction against revealing information that the defendant had promised not to reveal would be constitutional, but a preliminary injunction would likely not be, for reasons discussed in this article. For a recent case upholding a permanent injunction on a contract theory, see Perricone v. Perricone (Conn. 2009); for a case upholding damages liability on such a theory, see the Supreme Court’s decision in Cohen v. Cowles Media (1991). Note, though, that these theories would not justify any order to third parties (such as the publications in which Marzano-Lesnevich published her earlier works) to take down the material containing the confidential information, and it seems that no such order is sought by LCAC.