Sammy Sosa Steroid Disclosure - Breach of Attorney Confidentiality Obligations

It has been widely reported that Sammy Sosa's results from the MLB "anonymous" drug testing, from 2003, have been leaked by to the press by an attorney. The positive results for steroids have been reported by The New York Times. Lost amid the hubbub about another sports hero's reputation further sullied is the issue about the source of disclosure.

It has been reported that one of several attorneys involved in the process must have leaked it. I have absolutely no idea if that is the case. If true, it is quite disturbing to me, as a practicing attorney, who has been trained not to reveal information obtained during the course of representation. There is no "juicy information" exception to confidentiality obligations.

Yet, in practice, the confidentiality obligation is sometimes honored in the breach. Some attorneys wrongly believe that disclosing to a journalist as an anonymous media source is proper. It is not. I suppose the premise of this thought process is that he or she will never be found out. But not getting caught is not the basis to disclose confidential information.

Other attorneys may believe that disclosure is proper if your client (who may be other than Sosa) is not hurt by the disclosure. I would think this is incorrect also. I suspect that the attorneys involved - possibly for MLB or another entity - expected complete confidence. Indeed, the entire basis for the testing was anonymity.

If there was a breach of confidentiality obligations, then the source may be subject to sanction under the relevant State's disciplinary system. But we, of course, do not know the source. I doubt we ever will.

Even if there is a breach, this does not help Sammy Sosa. The fact is that, if true, the information may and will be used against him in the court of public opinion. That court is a lot less forgiving - and has fewer known procedural rules for preventing - prejudice to those anonymously accused.

If the information is false, then perhaps Sosa has the basis for a defamation and/or libel claim. But there are many hurdles to such a suit. The New York Times is likely protected from liability under the applicable standards. The source will likely never become known because the Times will fight tooth and nail to prevent disclosure under the press shield laws. They will probably win this battle.

So an anonymous steroids test was not really anonymous. Shocking. The upshot is that MLB will never again be able to claim anonymity for players providing information supposedly in confidence. Like everything else in life, secrecy is relative and always subject to question.