3.07 Confidentiality

Question 1

Duty of Confidentiality

Answer 1

Agency and Model RulesDoes NOT Require LitigationNOT Protected Against Compulsory Disclosure= Broadest, but weakest protection.

Question 2

Information about a client, belongs to a client.

Answer 2

Lawyerx duty is to the client, there is no reason to spread the information.

Disclosures may be Impliedly Authorized

Material Disclosures REQUIRE Informed Consent

Question 3

Permissive Standard MAY [When things have gone wrong] Disclose

Answer 3

DO WHAT YOU CAN TO GET INFORMED CONSENT - Covers disclosures not in client’s interests

Whenever Invoked = LIMITED to Extent Necessary (Often Best to Try and Get Informed Consent / Client Disclosure First)

Question 4

1. Prevent Reasonably Certain Death

Answer 4

About Clients Information, NOT Necessarily ActionAbout Risk . . . But Narrow, Absent Specific LawSubject to Jurisdictional Interpretations

Question 5

2. / 3. Use of the Lawyers Service to Commit Crime or Fraud

Answer 5

Disclosure Stops Client from Committing Fraud or Crime- Client can stop disclosure by changing course- Requires Reasonably Certain Causation

OR

Applies to Completed Fraud or Crime when the client used services to commit- Requires Ability to Aid RecoveryTheory = Abuse of the Lawyers Trust

Question 6

4. Getting Advice on Ethics Rules

Answer 6

Limited to Necessary Information to Achieve Purpose (i.e. use hypothetical whenever necessary)

Do you disclose contents of this with the client?- Careful of Waiver

• Require to Disclose Malpractice
• You’re at Odds with Interest of Client

Question 7

5. Establish a Claim or Defense

Answer 7

Limited to Whats Reasonably Necessary

Includes suits about work for a client by a 3rdP

Includes suits by body regulating lawyers

THEORY: Relationship is Broken

Question 8

6. Comply with Law or Court Order

Answer 8

You have to assert appropriate privileges, but once an order is in you have to comply, Only Way Not Too:-

• Mohawk v. Carpenter may take a contempt charge and habeas petition.
• Do not have to test the contempt charge to get protection under this section.

MUST COMPLY WITH OTHER LAWS

Question 9

7. Detect and Resolve Conflicts of Interest

Answer 9

Only IF revealed information would NOT compromise ACP or otherwise prejudice client.

Question 10

Required Disclosures

Answer 10

• Fraud on a Court
• Material Fact Necessary to Avoid Assisting a Criminal or Fraudulent Act By a Client (This may mean something more than use of services, meaning if you were heavily involved, require to disclose

Question 11

Failure to Disclose

Answer 11

Tarasoff v. Regents of Univ. of Ca. Lawyer may be liable for failure to warn (case about psychologist), especially when you know a fiduciary is abusing a client (i.e. guardian ward)

Question 12

Lawyer MUST Make All Reasonable Efforts to Protect Client Information, Factors:

Answer 12

Sensitivity of Information

Likelihood of Disclosure w/o Additional

Safeguards

Cost of Additional Safeguards

Extent Additional Safeguards Adversely Affect the Lawyers Ability to Represent Clients