3. Client Confidentiality

Question 1

confidentiality vs. attorney-client privilege

Answer 1

CONFIDENTIALITY: all information relating to representation

• ethical duty
• applies to ALL info, not just communication, during representation
• deals with ALL settings, not just court proceedings
• does NOT cover communications with NON-CLIENT

ACP: confidential communication between attorney/client/agents

• evidentiary rule
• only comes up when being required to disclose during course of litigation/etc.
• only deals with communications

Question 2

when does ACP/CONFIDENTIALITY BEGIN?

Answer 2

Consultations with POTENTIAL clients.

Question 3

when does ACP/CONFIDENTIALITY END?

Answer 3

NEVER!

Question 4

ACP: but what if the person with whom the client interacts isn’t a lawyer?

Answer 4

duty applies if client reasonably believed the person to be a lawyer—doesn’t matter if you’re not barred in that state, etc.

Question 5

ACP: who is your client (individual)?

Answer 5

anyone with whom you’ve met and discussed representation specifics, even if you don’t end up representing them in a matter.

Question 6

ACP: who is your client (organizational)?

Answer 6

high-ranking officials, along with certain lower-ranking employees (depending on circumstances)

Question 7

does ACP apply to agents?

Answer 7

YES - paralegals, consultants, etc.

Question 8

what DOESN’T ACP cover?

Answer 8

1) basic information (client’s name, etc.)
2) communications not made for legal assistance
3) preexisting documents or records (e.g. client’s HR records)

Question 9

when is communication covered by ACP?

Answer 9

CLIENT’S REASONABLE BELIEF

Question 10

what if someone overhears something under ACP?

Answer 10

IF that person was eavesdropping in a private space…not your fault. You can invoke ACP to prevent 3P from testifying at trial.

IF you were discussing in public (a restaurant or something)…you’ve fucked up. No ACP exception.

Question 11

Can client waive ACP?

Answer 11

YES, either intentionally or by disclosing to 3P.

Question 12

Exceptions to ACP

Answer 12

1) client wants aid in FUTURE crime or fraud (not past!!!)…if someone says, “I want help stealing,” you say “I will not represent you,” and they steal, you CANNOT invoke.
2) self-protection (e.g. client accuses you of doing a bad job—you can reveal relevant things)
3) litigation between former clients
4) cases where deceased client’s competency/intent is at question

Question 13

WPD: what’s work product?

Answer 13

anything made FOR the case.

Question 14

WPD: what’s the work product protection?

Answer 14

you don’t have to turn it over unless not doing so would result in undue hardship for opposing counsel

Question 15

how does CONFIDENTIALITY differ from ACP?

Answer 15

1) broader
2) 3P knowledge doesn’t affect YOUR duty
3) information doesn’t have to come from client
4) you can’t disclose to anyone (but you can speak in hypotheticals if you don’t disclose the party’s identity indirectly)

Question 16

CONFIDENTIALITY: when CAN you disclose?

Answer 16

1) if client gives informed consent (implied consent if it’s in client’s best interest, including ORDINARY—non-merger/hire—conflicts checks)
PERMISSIVE…ONLY TO EXTENT NECESSARY WHEN…
2) PREVENTING death or substantial BODILY harm (you can say if client said “I WILL kill my boss”; can’t if your client said “I DID kill my boss.”)
3) preventing FUTURE/ONGOING financial injury to another IF your services would be used to further. (NOT just broad prevention of crime/fraud)
4) preventing/mitigating harm from PAST crime regarding your services.
5) self defense in LEGAL dispute concerning YOUR conduct
6) obtaining legal ethics advice
7) detect/resolve conflicts of interest resulting from change in employment (only AFTER substantive decisions re: hire/merger/etc. have begun; ONLY relevant conflicts of interest information—not pricing, etc.)

Question 17

court says you have to break duty of CONFIDENTIALITY…what to do?

Answer 17

1) assert all non-frivolous defenses possible
2) ask client if they want you to appeal
3) otherwise, go ahead

Question 18

CONFIDENTIALITY: when MUST you disclose?

Answer 18

1) duty of candor to tribunal

2) serious corporate violations when representing org.

Question 19

how to operationalize duty

Answer 19

REASONABLE PROTECTIONS! MUST use safe wifi, not leave your laptop alone, lock offices, etc.

Do as much as possible (especially if high-profile client) without getting into exorbitant cost situation.

Question 20

for whom does the ACP exist?

Answer 20

THE CLIENT