4. Confidentiality

Question 1

Duty of Confidentiality

Answer 1

Need candor for effective rep. Three doctrine: duty of confidentiality, attorney work product (procedural), privilege (procedural)

Question 2

Attorney Client Priviledge? (Elements)

Answer 2

Anything said in confidence
+ relates to legal services (not business services etc. or anything general like the representation itself, fees, purpose, client wherabouts)
+ between privileged parties client/corporate employees, others (i) essential to legal services or (ii) necessary for support
+protected from discovery or testimony
+ unless waived

Deliberate? Tell 3rd party, even partial can cover all
Inadvertent? Prompt efforts to claw back/rectify

Question 3

Work-Product Doctrine

Answer 3

Core (related to lawyer’s effort)
Prepared by lawyer or their agent
in anticipation of litigation
Not discoverable

Except: prosecution/investigation of lawyer for knowingly participating in fraud/crime

Question 4

Confidentiality - duration?

Answer 4

From prospective conversations and beyond dealth

Question 5

Confidentiality - what’s covered?

Answer 5

disclosure of ANY information obtained in rep (from client or otherwise), without client consent (not readily available in public domain)

Question 6

Confidentiality - what’s covered?

Answer 6

disclosure of ANY information obtained in rep (from client or otherwise), without client consent (not readily available in public domain)

Question 7

Exceptions to Attorney-Client Privilege

Answer 7

• disputes: joint clients or lawyer/client or estate

OR

• crime/fraud:
  … communications in furtherance of crime (not past)
  …knowing/reckless misrepresentation likely to injure

crime doesn’t need to have taken place, but client needed to have intent (CA: before communication)

person seeking to compel disclosure has burden (CA standard: show reasonable person would have reasonable basis to expect perpetration (or attempted perpetration) of crime/fraud

Question 8

Exceptions to observing duty of confidentiality?

Answer 8

Perjury (mandatory) [CA: nope]

Consult and get client oral consent (follow up confirmation in writing) [CA: informed written consent]

Reasonably believe reasonable certainty of death/substantial bodily harm [CA: must be a CRIMINAL act - not the case under federal rules - and good faith effort to prevent and notify client before disclosure] CA scope: only to the extent necessary to prevent

Federal test extends to financial injury

Question 9

Other miscellaneous excuses to disclosure of confidential information?

Answer 9

• establish claim or defense re: lawyer/client dispute
• legal advice re: rule violation
• pursuant to subpoena (court order)