Attorney-Client Privilege and Confidentiality

Question 1

Differences between attorney-client privilege and the rule of confidentiality

Answer 1

A-C Privilege
Governmental proceedings such as trials, depositions, etc
Communication between attorney and client only
Evidence Code

�Rule of Confidentiality
Non-governmental proceedings situations
Not limited to communication between attorney and client – all confidential information no matter its source

Question 2

California Evidence Code 954

Answer 2

The client has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication between client and attorney

Question 3

California Evidence Code 956

Answer 3

There is no privilege if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or fraud �

Question 4

ABA Rule 1.6 (a) - Ethical Duty of Confidentiality

Answer 4

Attorney shall not reveal information relating to the representation unless the client gives informed consent, the disclosure is impliedly authorized, or it is permitted by subdivision (b)

Question 5

ABA 1.6(b)(1)

Answer 5

Attorney may reveal information relating to representation to extent attorney reasonably believes disclosure is necessary to:
(1) prevent reasonably certain death or substantial bodily harm; or

Question 6

ABA 1.6(b)(2)

Answer 6

… reasonably believes necessary to: …

(2) prevent client from committing crime or fraud that is reasonably certain to result in substantial injury to financial interest of another and which client used attorney’s services

Question 7

ABA 1.6(b)(3)

Answer 7

… reasonably believes necessary to: …

(3) prevent, mitigate, or rectify substantial injury to financial interest or property of another that is reasonably certain to result or has resulted from client’s crime or fraud and which client used attorney’s services

Question 8

ABA 1.6(b)(4-6)

Answer 8

… reasonably believes necessary to: …

(4) Get legal advice about complying with rules of professional conduct
(5) “Self defense” or
(6) Comply with other law or court order

Question 9

ABA Rule 1.8(b)

Answer 9

Lawyer shall not use information related to representation to the disadvantage of the client unless client gives informed consent

Question 10

ABA Rule 3.4(a)

Answer 10

Lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value

Question 11

ABA Rule 1.2 (d)

Answer 11

Lawyer shall not counsel a client to engage or assist a client in crime or fraud
Lawyer may discuss with a client the legal consequences of proposed conduct

Question 12

ABA Rule 4.1

Answer 12

Lawyer shall not knowingly:

• Make false statement of material fact to 3rd person; or
• Fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by client unless disclosure is prohibited by Rule 1.6