3. Client Confidentiality

Question 1

Does the attoney-client privilege and/or the duty of confidentiality apply to a person who comes in to talk about hiring the lawyer but decides not to do so?

Answer 1

Yes, both the attorney-client privilege and the duty of confidentiality apply.

Question 2

Does the attorney-client privilege and/or the duty of confidentiality survive the client’s death?

Answer 2

Yes, both the attorney-client privilege and the duty of confidentiality survive the termination of representation, and even the client’s death.

Question 3

attorney client privilege applies to:

Answer 3

confidential communications between the attorney and the client and their respective agents

Question 4

“confidential information” under the ethical duty of confidentiality applies to:

Answer 4

all information relating to the representation

Question 5

what information usually is NOT privileged?

Answer 5

The mechanical details of the attorney-client relationship
* identity of the client
* the fee arrangement between the attorney and the client
* the bare fact that the attorney is acting for the client

However, this information is privileged if disclosure would be tantamount to revealing a privileged communication

Question 6

In which of the following situations does attorney-client privilege apply to consultations with prospective clients
* when the client is seeking the attorney’s services to engage in or assist a future crime or fraud
* when the client discloses to the attorney information about past crimes he committed

Answer 6

• The attorney-client privilege does NOT apply if the prospective client is seeking the attorney’s services to engage in or assist a future crime or fraud
  NOTE: the future crime/fraud exception applies to the attorney-client privilege. There is no general crime/fraud exception for the duty of confidentiality. However other exceptions might apply to a client’s crime or fraud.
• The attorney-client privilege DOES apply to communications about past crimes

Question 7

Does the lawyer’s ethical duty of confidentiality apply when the client has waived the attorney-client privilege?

Answer 7

Yes, the ethical duty of confidentiality applies to information relating to the representation even if some third parties know about it.

Question 8

When can a lawyer reveal information relating to the representation without violating the ethical duty of confidentiality?

Answer 8

• the client has given informed consent
• consent is impliedly authorized
• an exception to the duty applies

Question 9

Can a lawyer reveal the client’s confidential information to prevent or mitigate financial harm to someone resulting from the client’s crime or fraud?

Answer 9

A lawyer may reveal the client’s confidential information to the extent necessary to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial financial harm to someone, if the client is using or has used the lawyer’s services in the matter.

The same is true if the client has already acted, and the lawyer’s disclosure can prevent or mitigate the consequent financial harm.

Question 10

What client information may be disclosed when firms merged or are purchased? What conditions apply to the sharing of that information?

Answer 10

When a lawyer changes firms, when two firms merge, or when a law practice is being purchased, lawyers may disclose limited client information (e.g., client names and a brief summary of the general issues involved) in order to detect and resolve conflicts of interest, subject to the following conditions:

(i) the disclosure may be made only after substantive discussions regarding the new relationship have occurred;

(ii) the disclosure must be limited to the minimum necessary to detect any conflicts of interest;

(iii) the disclosed information must not compromise the attorney-client privilege or otherwise prejudice the clients; and

(iv) the disclosed information may be used only to the extent necessary to detect and resolve any conflicts of interest.