Attorney-Client Privilege and Its Exceptions (Crime-Fraud and The Work Product Doctrine) - June 15

Question 1

What does attorney-client privilege protect? (Lerman)

Answer 1

The attorney-client privilege protects only “communications” between lawyer and client, including face-to-face conversations, telephone calls, memoranda, e-mails, text messages, or any other modes of exchanging information. The privilege protects communications from the client to the lawyer and those from the lawyer to the client. (470)

Question 2

Does the a-c privilege provide a shield against disclosure of the underlying facts? (Lerman)

Answer 2

No. The privilege provides a shield only against disclosure of the communication itself, not against disclosure of the underlying facts that were communicated. (470)

Question 3

Does the mere presence of a lawyer during a non privileged conversation turn the conversation into one that is privileged? (Lerman)

Answer 3

No. The mere presence of a lawyer during a non-privileged conversation (such as where the communication is not for the purpose of giving or receiving legal advice) does not turn the conversation into one that is privileged. (470)

Question 4

Does the a-c privilege protect communications with a lawyer’s colleagues and staff? (Lerman)

Answer 4

Yes. Most lawyers work closely with other lawyers, secretaries, paralegals, and investigators. Communications with these colleagues and agents of a lawyer are privileged. Also, a lawyer’s or secretary’s notes of a privileged conversation are privileged, just as if the client had made her own notes and brought them to the lawyer in the form
of a memorandum. (471)

Question 5

Does the attorney-client privilege cover communications with anyone other than lawyers, clients, and agents of the lawyer? (Lerman)

Answer 5

Yes in the case of interpreters, minors with parents, and legal guardians. (471)

Question 6

Does the a-c privilege protect a client that has talked to the lawyer but has not yet hired her? (Lerman)

Answer 6

This communication with a prospective lawyer would be privileged. Otherwise, a client might
not be able to share enough information for the lawyer and client to decide whether to move forward with the representation. (472)

Question 7

If two lawyers are representing a client, would their conversations about the case be protected by the privilege? (Lerman)

Answer 7

In general, yes. Privilege extends to discussing client communications with other lawyers in the lawyer’s firm. In addition, lawyers at two different firms who are representing two parties with common interests, such as co-defendants, can discuss a joint strategy without waiving the privilege. Recently, some courts have extended the privilege to cover such communications even when a lawsuit is not pending or threatened (such as premerger talks between lawyers for two companies), provided that the purpose of the communication is to further a common legal interest of the clients and not primarily to discuss business matters. (472)

Question 8

How can a communication be privileged? (Lerman)

Answer 8

For a communication to be privileged, the client must reasonably believe that it is confidential. (472)

Question 9

Are conversations that occur when strangers are also present considered privileged? (Lerman)

Answer 9

No. (472)

Question 10

Suppose a school or employer has an announced policy that allows it to monitor e-mail sent through its server. If a student or
employee e-mails a lawyer using that server, is the communication privileged? (Lerman)

Answer 10

Probably no because the person has been warned. (473)

Question 11

Are prisoners entitled to have privileged e-mail communications with their lawyers? (Lerman)

Answer 11

Most courts have said that prison officials are allowed to monitor all electronic communications between prisoners and other persons, including their lawyers, and may use these communications against the prisoners in further proceedings. The rationale for this exception is that prisoners “consent” to inspection of their e-mail as a condition of
being able to use this method of communication, and that prisoners can communicate with their lawyers privately by mail, telephone, and in person. (473)

Question 12

If a client tells a lawyer some factual information during a privileged conversation, can the client claim privilege to avoid testifying about those facts? (Lerman)

Answer 12

No. The communication with the lawyer is privileged, but the underlying facts are not. The facts might be protected by a different privilege, such as the privilege against self-incrimination. But if other privileges don’t apply and the client is required to testify about the facts, she must disclose them. (476)

Question 13

If a client gives a lawyer a document (say, a copy of a contract) related to the representation, does the document thereby become a privileged communication? (Lerman)

Answer 13

No. The document is a piece of evidence. The lawyer or the client could be compelled to provide a copy of the document to an adverse party. Lawyers are not allowed to hide evidence for clients. (477)

Question 14

Can a client waive the privilege inadvertently? (Lerman)

Answer 14

Yes. A client may reveal privileged information in a casual conversation with a non-privileged person. Sometimes this results in an unintentional waiver of privilege. (482)

Question 15

What happens if a client relies on privileged communications while suing her lawyer? (Lerman)

Answer 15

If a client puts a privileged communication into issue in a case, the client waives privilege. Therefore, if a client sues a lawyer for malpractice and asserts that the lawyer gave her incorrect advice, the lawyer may reveal the details of the relevant conversations for the purpose of self-defense. (483)

Question 16

When can privilege be waived by the client’s lawyer? (Lerman)

Answer 16

Privilege can be waived by the client’s lawyer if the client has authorized the waiver. (483)

Question 17

How can a client authorize a lawyer to waive privilege? (Lerman)

Answer 17

The client could authorize the lawyer to waive privilege by telling the lawyer that he may do so (express authority), by giving the lawyer directions that imply that the lawyer may waive (implied authority), or by making a statement to a third party that the lawyer has the authority to waive privilege (apparent authority) (483)

Question 18

If a lawyer deliberately reveals privileged information, does this effect waiver of privilege? (Lerman)

Answer 18

No. If the lawyer deliberately reveals the information without having express, implied, or apparent authority, the revelation does not effect a waiver of privilege. (483)

Question 19

Can a lawyer waive privilege by failing to invoke it during a trial? (Lerman)

Answer 19

Yes. (484)

Question 20

Is the privilege lost if a lawyer represents two clients jointly? (Lerman)

Answer 20

No. If two clients hire a lawyer jointly, they are considered common clients with a common privilege. (484)

Question 21

Can a client waive privilege by disclosing only part of a communication? (Lerman)

Answer 21

Yes. A judge might find that the disclosure waived the privilege as to the other parts of the communication that relate to the subject matter of the portion that was disclosed. The reason for this “subject matter” test is to prevent the client from offering misleading testimony by revealing only a half-truth. (485)

Question 22

What is the attorney-client privilege? (Q)

Answer 22

The attorney-client privilege is a common-law evidentiary rule used to exclude from evidence some communications between lawyers and clients. A person may not be compelled to reveal the content of a communication that falls under the privilege. The privilege is intended to encourage full and candid communications between lawyers and their clients.

Question 23

What are the four elements that determine whether the attorney-client privilege applies to a communication? (Q)

Answer 23

The attorney-client privilege applies to (1) a communication (2) between privileged persons, (3) made in confidence, and (4) for the purpose of obtaining or providing legal assistance

Question 24

What forms of communication are protected by the attorney-client privilege? (Q)

Answer 24

The attorney-client privilege protects any form of communication that conveys privileged information. Thus, oral, written, and electronic communications may be subject to the privilege, as may nonverbal communications.

The privilege applies not only to the original communication, but also to any other communication or record that would reveal the original communication.

Question 25

If a communication is subject to the attorney-client privilege, are the facts contained in the communication also privileged? (Q)

Answer 25

No. The attorney-client privilege extends to communications, but not to the facts contained within privileged communications. Thus, if the facts contained in a communication may properly be discovered or revealed through sources other than a privileged communication, then the facts themselves are subject to disclosure.

Question 26

For purposes of the attorney-client privilege, who are privileged persons? (Q)

Answer 26

For purposes of the attorney-client privilege, the category of privileged persons includes:

the client (including a prospective client);
the client’s lawyer;
agents of the client or lawyer who facilitate communications between them (e.g., an assistant or a translator); and
agents of the lawyer who facilitate the representation (e.g., paralegals, law office staff, or independent contractors such as accountants or physicians, who are hired by the lawyer to assist the lawyer in providing legal services to the client).

Question 27

Does the attorney-client privilege apply to a communication that is intended to reach a privileged person but does not actually do so? (Q)

Answer 27

Yes. The attorney-client privilege applies to a communication that is intended to reach a privileged person but does not actually do so, e.g., if the communication is intercepted or destroyed in transit.

Question 28

For purposes of the attorney-client privilege, what is the definition of a communication made in confidence? (Q)

Answer 28

For purposes of the attorney-client privilege, a communication is made in confidence if, at the time of the communication, the person making the communication reasonably believes that only a privileged person will learn the contents of the communication. The matter being communicated does not need to be a secret to qualify as a confidential communication.

Question 29

In general, does the attorney-client privilege apply to a communication between privileged persons if a nonprivileged person is present? (Q)

Answer 29

No. In general, if a nonprivileged person is present during a communication between privileged persons, then the attorney-client privilege will not apply. However, if the privileged persons took reasonable steps to maintain confidentiality, and another individual eavesdrops on the conversation without their knowledge, the privilege remains intact.

In addition, the presence of another person during the communication who is subject to a privilege other than the attorney-client privilege (e.g., the spousal privilege) does not destroy the attorney-client privilege as to the communication.

Question 30

For purposes of the attorney-client privilege, under what circumstances is a communication made for the purpose of obtaining or providing legal assistance? (Q)

Answer 30

For purposes of the attorney-client privilege, a communication is made for the purpose of obtaining or providing legal assistance if:

the communication is made by, to, on behalf of, or to assist a lawyer or someone who the client or prospective client reasonably believes is a lawyer; and
the communication is made for the purpose of obtaining or providing legal services.

A lawyer’s assistance and services are considered to be legal in nature if the lawyer’s professional skill and training are valuable in the matter (e.g., giving legal advice or counseling, preparing legal documents, assisting in litigation, or providing other assistance usually given by lawyers).

Question 31

If a client is a corporation or other organization, what requirements must be met for the attorney-client privilege to apply? (Q)

Answer 31

If a client is a corporation or other organization, the attorney-client privilege applies if the communication:

meets the normal conditions for the attorney-client privilege,
is between a privileged person and an agent of the organization,
involves a legal matter that is of interest to the organization, and
is disclosed only to privileged persons or to other agents of the organization who have a reasonable need to know about the communication to act on behalf of the organization.

Question 32

In general, if the attorney-client privilege is not waived, how long does the privilege last? (Q)

Answer 32

In general, unless the attorney-client privilege is waived, the privilege lasts indefinitely. Thus, the privilege continues after the representation has ended and even after the death of the client.

Question 33

Is the client the holder of the attorney-client privilege? (Q)

Answer 33

Yes. The client, not the lawyer, holds the attorney-client privilege. Thus, the client has the right to assert the privilege if an attempt is made to obtain privileged information or introduce privileged information into evidence. The client may also choose to waive the privilege and provide the privileged information, regardless of the wishes of the lawyer.

In addition to the client, a personal representative of an incompetent or deceased client, or a person who succeeds to a client’s interest, may invoke or waive the privilege, either personally or through counsel or another authorized agent.

Question 34

Are there circumstances in which a lawyer or other privileged person must assert the attorney-client privilege on the client’s behalf? (Q)

Answer 34

Yes. A lawyer, a lawyer’s agent, or a client’s agent must invoke the attorney-client privilege if it appears reasonably appropriate to do so. This requirement does not apply if the client has waived the privilege or if the client has authorized the lawyer or agent to waive the privilege.

Question 35

May the attorney-client privilege be waived either by the client or by the lawyer on the client’s behalf? (Q)

Answer 35

Yes. The attorney-client privilege may be waived by the client, the client’s lawyer, or another agent acting on the client’s behalf if one of these actors:

voluntarily discloses a privileged communication while acting with actual or apparent authority to do so;
disclaims the privilege and another person reasonably relies on the disclaimer to that person’s detriment, or there are other reasons to prevent revocation of the disclaimer; or
in a court proceeding, fails to object properly to an attempt to obtain or introduce privileged material.

A lawyer generally may not waive the privilege over the client’s objections.

Question 36

In general, is the attorney-client privilege waived if a privileged communication is inadvertently disclosed to someone who is not a privileged person? (Q)

Answer 36

No. In general, the attorney-client privilege is not waived if the communication is inadvertently disclosed to a nonprivileged person. However, once the client knows or reasonably should know that the communication was inadvertently disclosed, the client must take prompt, reasonable steps to recover the communication and reassert the privilege. A failure to do so may be deemed a waiver of the privilege as to that communication.

Question 37

Does a client waive the attorney-client privilege by placing a privileged communication in issue in a court proceeding? (Q)

Answer 37

Yes. A client waives the attorney-client privilege by placing a privileged communication in issue in a court proceeding. More specifically, the client waives the privilege as to any relevant communications if:

the client asserts, as to a material issue, that the lawyer’s advice was relevant to the client’s conduct; or
the client asserts that the lawyer rendered ineffective or wrongful assistance to the client.

Question 38

Can the protections of the attorney-client privilege be waived if a privileged communication is used to prepare or assist a witness in a court proceeding? (Q)

Answer 38

Yes. The attorney-client privilege can be waived if a privileged communication is used to prepare or assist a witness in a court proceeding. More specifically, the privilege is waived if:

the witness uses a privileged communication to assist the witness while testifying; or
a privileged communication is used to prepare a witness to testify, and the court finds that justice requires disclosure of the communication.

Question 39

What is the crime-fraud exception to the attorney-client privilege? (Q)

Answer 39

The crime-fraud exception to the attorney-client privilege provides that a communication is not privileged if:

the client communicates with the lawyer with the purpose of committing or obtaining assistance in committing a crime or a fraud, and the client accomplishes that purpose; or

the client uses the communication to commit or assist in committing a crime or fraud, regardless of the client’s intent at the time of the communication and regardless of whether the client understands that the conduct is criminal or fraudulent.

Question 40

Does the crime-fraud exception to the attorney-client privilege apply if the client communicates with the lawyer with the purpose of obtaining assistance in committing crime or fraud but then does not actually commit the crime or fraud? (Q)

Answer 40

No. The crime-fraud exception does not apply if the client never commits a crime or a fraud, regardless of the client’s intent at the time of the communication. The purpose of this rule is to enable clients to freely inquire about the legality of a proposed course of action, without penalty if they are then deterred from wrongful conduct.

Question 41

May a court conduct an in camera examination of allegedly privileged attorney-client communications to determine whether they fall within the crime-fraud exception to the attorney-client privilege? (Q)

Answer 41

Yes. A court may conduct an in camera examination of allegedly privileged attorney-client communications to determine whether they fall within the crime-fraud exception to the attorney-client privilege, which invalidates the privilege for any communications with the lawyer that were in furtherance of a crime or fraud. A party invoking the crime-fraud exception must show a factual basis to support a reasonable belief that the court’s review of the privileged material would reveal evidence establishing that the exception applies. If the party makes this threshold showing, only then may the court exercise its discretion to review the otherwise-privileged material in camera.

Question 42

Does the attorney-client privilege always apply to matters such as the existence of a client-lawyer relationship, the identity of a lawyer’s clients, and the amount or source of the lawyer’s fee payments? (Q)

Answer 42

No. The attorney-client privilege does not invariably apply to matters such as the existence of a client-lawyer relationship, the identity of a lawyer’s clients, and the amount or source of the lawyer’s fee payments. Some courts will allow disclosure of these and similar facts if they do not expose the content of attorney-client communications.

Question 43

Does the law recognize exceptions to the attorney-client privilege for fee disputes and for defending charges of attorney misconduct? (Q)

Answer 43

Yes. The attorney-client privilege does not apply to a communication that is both relevant and reasonably necessary for the lawyer to use:

to resolve a dispute regarding payment that the lawyer reasonably alleges to be owed by the client to the lawyer or

to defend the lawyer, or the lawyer’s agent or associate, against an allegation made by anyone that the lawyer, agent, or associate committed misconduct during the representation.

Question 44

A lawyer represented a client regarding a criminal charge of driving while intoxicated. The client brought his friend with him when he went to meet with the lawyer in the lawyer’s office. The friend was not in the meeting to facilitate communications between the client and the lawyer. During the meeting, with his friend present, the client told the lawyer that he had 10 beers immediately prior to his stop and arrest for driving while intoxicated.

May the client properly invoke the attorney-client privilege over this conversation? (Q)

Answer 44

No. The client may not assert the attorney-client privilege. The attorney-client privilege protects from disclosure confidential communications made between privileged persons for the purpose of obtaining or providing legal services. Privileged persons include the client, the client’s lawyer, agents of the client or lawyer who facilitate communications between them (e.g., an assistant or translator), and agents of the lawyer who facilitate the representation (e.g., paralegals). If the communication does not occur solely between privileged persons, it is not in confidence and does not qualify for the attorney-client privilege.

Here, the client’s friend was not a privileged person, so the friend’s presence in the meeting meant that the conversation between the client and the lawyer was not in confidence. Thus, the client may not assert the attorney-client privilege over the conversation.

Question 45

A lawyer represented a client in tax matters. The lawyer took the client out for lunch in a crowded restaurant. While at lunch, the client and lawyer had a conversation about the tax ramifications of certain courses of conduct. The client was subsequently involved in a dispute with the Internal Revenue Service (IRS).

Will the client likely be able to assert the attorney-client privilege to prevent the IRS from obtaining information regarding the lunchtime conversation? (Q)

Answer 45

No. The client likely will not be able to assert the attorney-client privilege over the conversation. The privilege protects from disclosure confidential communications made between privileged persons (i.e., the client, the client’s lawyer, and certain agents of the client or lawyer) for the purpose of obtaining or providing legal services. For the privilege to apply, the communicating person must reasonably believe that no one except a privileged person will learn the communication’s contents.

Here, the client and lawyer discussed legal matters in a crowded restaurant where other patrons could overhear, making it likely that a nonprivileged person would have access to the information. Thus, because the client could not reasonably believe that nobody except a privileged person would learn the contents of the communication, the client likely will not be able to assert the privilege.

Question 46

What is attorney work product? (Q)

Answer 46

Attorney work product encompasses (1) documents or other tangible things, or their unwritten equivalents, (2) prepared in anticipation of litigation or for trial (3) by a lawyer. Under the work-product doctrine, attorney work product is protected from discovery or disclosure in litigation or similar legal proceedings.

Question 47

What is the difference between opinion work product and ordinary work product? (Q)

Answer 47

The difference between opinion work product and ordinary work product is that opinion work product consists of a lawyer’s opinions and mental impressions formed in anticipation of litigation or for trial, while ordinary work product includes all other forms of work product. Opinion work product encompasses not only a lawyer’s direct statement of opinion or mental impression, but also more indirect revelations of a lawyer’s thought processes or legal opinions, such as a lawyer’s index or arrangement of client documents that was prepared in anticipation of litigation.

Question 48

In general, is work product protected from discovery and other forms of disclosure in litigation or other legal proceedings? (Q)

Answer 48

Yes. The work-product doctrine provides that work product is generally protected from discovery and other forms of disclosure in litigation or other legal proceedings. In general, one party may obtain another party’s ordinary work product only if the first party can establish that it has a substantial need for the materials to prepare its case and cannot obtain their substantial equivalent without undue hardship.

Question 49

In general, may one party obtain another party’s opinion work product only in extraordinary circumstances or if the opposing party has demonstrated a compelling need for its discovery? (Q)

Answer 49

Yes. In general, one party may obtain another party’s opinion work product only in extraordinary circumstances or if the opposing party has demonstrated a compelling need for its discovery. The courts have not clearly defined extraordinary circumstances in this context. However, the phrase is apparently meant to indicate that opinion work product is more highly protected than ordinary work product, though not as highly protected as privileged attorney-client communications.

Question 50

May the protections of the work-product doctrine be waived by either the client or the lawyer? (Q)

Answer 50

Yes. The protections of the work-product doctrine may be waived by the client, the client’s lawyer, or another agent of the client if one of these actors:

agrees to waive the protections;
disclaims the protections and another person reasonably relies on the disclaimer to that person’s detriment, or there are other reasons to prevent revocation of the disclaimer;
in a court proceeding, fails to object properly to an attempt to obtain or introduce evidence of work product; or
reveals the material to third parties in a way that makes it likely that an adversary in litigation will obtain it.

Question 51

Does the work-product doctrine protect the facts on which the work product is based? (Q)

Answer 51

No. Like the attorney-client privilege, the work-product doctrine does not apply to the facts on which the work product is based. Thus, if those facts are otherwise discoverable or unprotected from disclosure, they may be revealed or obtained by an opposing party without violating the work-product doctrine.

Question 52

What is the crime-fraud exception to the work-product doctrine? (Q)

Answer 52

The crime-fraud exception to the work-product doctrine provides that the doctrine does not apply to materials prepared if:

the client consults the lawyer with the purpose of committing or obtaining assistance in committing a crime or a fraud, and the client accomplishes that purpose, or
the client uses the materials to commit or assist in committing a crime or fraud.

Question 53

Does a client waive the protections of the work-product doctrine by placing the work product in issue in a court proceeding? (Q)

Answer 53

Yes. A client waives the protections of the work-product doctrine by placing the work product in issue in a court proceeding. More specifically, the client waives the protections as to any relevant material if:

the client asserts, as to a material issue, that the lawyer’s advice was relevant to the client’s conduct; or
the client asserts that the lawyer rendered ineffective or wrongful assistance to the client.

Question 54

Can the protections of the work-product doctrine be waived if the work product is used to prepare or assist a witness in a court proceeding? (Q)

Answer 54

Yes. the protections of the work-product doctrine can be waived if the work product is used to prepare or assist a witness in a court proceeding. More specifically, the protections are waived as to any relevant material if:

the witness uses recorded work product to assist the witness while testifying; or
recorded work product is used to prepare a witness to testify, and the court finds that justice requires disclosure of the work product.

Question 55

A lawyer was representing a client in litigation over water rights. The lawyer prepared a memorandum for the client that outlined the lawyer’s opinion of the strengths and weaknesses of the various claims the client could bring against the opposing party. The opposing party issued a broad discovery request asking for any evidence or information in the client’s possession regarding the water-rights litigation.

Must the client produce the lawyer’s memorandum? (Q)

Answer 55

No. The client is not required to produce the lawyer’s memorandum, because the memorandum is the lawyer’s opinion work product. Opinion work product consists of a lawyer’s legal theories, opinions, mental impressions, and similar thoughts in anticipation of litigation. Opinion work product is immune from discovery or other compelled disclosure unless immunity is waived, an exception applies (e.g., the crime-fraud exception), or extraordinary circumstances justify disclosure.

Here, the lawyer’s memorandum was opinion work product: it was prepared in advance of litigation and contained the lawyer’s legal theories and opinions about the merits of various potential claims. The client has not waived immunity, and there is no indication that any exceptions applied or that there were extraordinary circumstances justifying disclosure. Thus, the client is not required to produce the memorandum.

Question 56

In the context of a client-lawyer relationship, what information is considered to be confidential under the Model Rules of Professional Conduct (MRPC)? (Q)

Answer 56

The MRPC define as confidential any information relating to the representation of a client, regardless of the source of the information. Confidential information is generally protected from disclosure to enhance trust between the client and the lawyer and to encourage the client to seek legal advice. (Q)

Question 57

In general, under the MRPC, in what circumstances is a lawyer permitted to reveal confidential information? (Q)

Answer 57

In general, and subject to limited exceptions, a lawyer may only reveal confidential information if (1) the client gives informed consent, or (2) the disclosure is impliedly authorized to carry out the representation.

Question 58

A lawyer was representing a client regarding a criminal charge of driving while intoxicated. The lawyer read in the newspaper that the client’s blood alcohol level had been tested and was above the legal limit. The next day at brunch, the lawyer told his friend that the client’s blood alcohol appeared to have been above the legal limit.

Has the lawyer violated his duty of confidentiality under the MRPC? (Q)

Answer 58

Yes. The lawyer violated his duty of confidentiality. The MRPC prohibit a lawyer from, among other things, disclosing information related to the representation of a client during the lawyer’s representation of the client, unless the client has given informed consent to the disclosure, or disclosure is authorized or required by the MRPC or other law. This applies not only to matters communicated in confidence directly by the client, but also to all information related to the representation—whatever the source.

Here, even though the lawyer learned of the client’s blood alcohol level from the newspaper, he was prohibited from discussing it during his representation of the client, because it was information related to the representation of the client. Thus, the lawyer violated his duty to maintain confidentiality by telling his friend about the client’s blood alcohol level.

Question 59

Under the MRPC, is a lawyer required to make reasonable efforts to protect confidential information from accidental or unauthorized disclosure? (Q)

Answer 59

Yes. The MRPC require a lawyer to make reasonable efforts to prevent the accidental disclosure of confidential information, the unauthorized disclosure of confidential information, and unauthorized access to confidential information. Some of the factors in determining reasonableness are:

the sensitivity of the information,
the likelihood of disclosure without additional safeguards,
the cost of additional safeguards,
the difficulty of using the safeguards, and
the extent to which the safeguards interfere with the lawyer’s ability to represent clients.

Question 60

A corporation hired a lawyer to help it file an application for a very sensitive and lucrative patent. The lawyer routinely transported the corporation’s draft patent documents in his briefcase on his commute to and from work on the subway. One day, the lawyer forgot his briefcase on the subway, and a third party accessed the patent documents.

Has the lawyer violated the MRPC? (Q)

Answer 60

Yes. The lawyer has violated the MRPC. The MRPC require a lawyer to take reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client. In determining whether a lawyer’s efforts are reasonable, relevant factors include the nature and sensitivity of the information and the cost and difficulty of employing safeguards to protect the information.

Here, the corporation’s patent application involved very sensitive material. It would not have been difficult or expensive to employ safeguards to protect the material—the lawyer could have either maintained the documents in the office or transported them only with extreme care and attention. Thus, the lawyer has failed to take reasonable efforts to prevent disclosure of the information and has violated the MRPC.

Question 61

In general, under the MRPC, does a lawyer’s obligation of confidentiality extend to a lawyer’s former clients? (Q)

Answer 61

Yes. In general, under the MRPC, a lawyer’s duty of client confidentiality extends to former clients, just as to current ones. This means that even after a client-lawyer relationship has ended, the lawyer is generally prohibited from revealing information relating to the representation of the client.

Question 62

In general, under the MRPC, does a lawyer’s obligation of confidentiality extend to a lawyer’s prospective clients, even if they do not actually become the lawyer’s clients? (Q)

Answer 62

Yes. In general, under the MRPC, a lawyer’s duty of confidentiality extends to a prospective client (i.e., a person who consults with the lawyer about the possibility of forming a lawyer-client relationship) to the same extent as to the lawyer’s current and former clients, even if the prospective client does not ultimately become the lawyer’s client. This rule recognizes that in an initial consultation with a lawyer, a prospective client might reveal information about the prospective client’s affairs, including information necessary for the lawyer to decide whether to undertake the representation. The lawyer is not allowed to reveal this information, regardless of whether a client-lawyer relationship is formed.

Question 63

Is a lawyer’s professional obligation of confidentiality designed to promote trust between the client and the lawyer? (Q)

Answer 63

Yes. The main reason for the ethical rule that a lawyer must not reveal information related to the representation of a client is that the client and lawyer must trust one another. A client who trusts a lawyer to keep his secrets will be more willing to seek legal assistance and to communicate fully and frankly with the lawyer—even about embarrassing or legally damaging topics. A lawyer needs full and honest information to represent a client effectively, and if necessary, to advise the client to refrain from any wrongful conduct.

Question 64

Under the MRPC, does the lawyer’s general obligation of confidentiality extend to information that is not itself confidential, but which could reasonably lead a third party to discover confidential information? (Q)

Answer 64

Yes. Under the MRPC, the lawyer’s general obligation of confidentiality extends to information that is not itself confidential, but which could reasonably lead a third party to discover confidential information.

A lawyer’s use of a hypothetical does not violate this principle provided that the hypothetical is not reasonably likely to enable a listener to determine the client’s identity or the situation involved.

Question 65

A lawyer represented a client in a routine divorce proceeding. A few months later, the lawyer was part of a family-law panel discussion hosted by a local bar association. The lawyer presented a hypothetical situation based on the client’s divorce. The lawyer did not identify the client directly or give any specific identifying details about the parties in the divorce matter.

Did the lawyer’s use of the hypothetical violate the MRPC? (Q)

Answer 65

No. The lawyer’s use of the hypothetical did not violate the MRPC. The MRPC require a lawyer to protect information related to the representation of a client. This protection extends to disclosures that do not themselves reveal protected information but could lead a third party to discover protected information. However, a lawyer is permitted to use a hypothetical to discuss issues related to a representation as long as there is no reasonable likelihood that a listener will be able to identify the client or situation.

Here, the lawyer used the client’s divorce case as the basis for a hypothetical scenario discussed at the panel. The lawyer did not identify the client or provide identifying details about the parties, and accordingly, there was not a reasonable likelihood that a listener could identify the client or the situation. Thus, the use of the hypothetical did not violate the MRPC.

Question 66

Is the lawyer’s general obligation of confidentiality under the MRPC identical to the doctrines of attorney-client privilege and work-product protections? (Q)

Answer 66

No. The lawyer’s general obligation of confidentiality under the MRPC is related to, but much broader than, the concepts of attorney-client privilege and work-product protections. Both the attorney-client privilege and the work-product doctrine apply in judicial and other legal proceedings as methods of excluding communications or work product from evidence.

By contrast, the MRPC’s duty to maintain client confidentiality is a much broader rule that covers all information related to representing a client, regardless of the source, and it applies in a much wider range of contexts (i.e., not merely legal proceedings).

Question 67

Under the MRPC, may a client give express, informed consent to the lawyer’s disclosure of information relating to the lawyer’s representation of the client? (Q)

Answer 67

Yes. Under the MRPC, a client may expressly give informed consent to the lawyer’s disclosure of information relating to the lawyer’s representation of the client. Giving informed consent means the client agrees to a proposed course of conduct after the lawyer has communicated adequate information and explanation about:

the material risks of the proposed course of conduct and
any reasonably available alternatives to the proposed course of conduct.

Question 68

A lawyer successfully represented a client in a high-profile criminal matter. The lawyer was contacted by a book publisher to author a book discussing the representation. The lawyer decided to write the book.

In order to write the book without violating the duty of confidentiality under the MRPC, does the lawyer need to consult the client and obtain the client’s informed consent to the use of the client’s confidential information? (Q)

Answer 68

Yes. The lawyer needs to consult the client and obtain the client’s informed consent. A client may expressly relieve the lawyer of the duty of confidentiality (i.e., the duty to protect information related to the representation of a client) by giving informed consent to the disclosure of the client’s confidential information. The lawyer must consult with the client before the client provides consent, and the client must be adequately informed about how the confidential information will be used or disclosed.

Here, because the book concerned the lawyer’s representation of the client, writing the book would necessarily involve disclosing information protected by the duty of confidentiality. Thus, to avoid violating this duty, the lawyer must consult the client and obtain the client’s informed consent to the use of the information after explaining how the information will be used in the book.

Question 69

Under the MRPC, under what circumstances is a lawyer impliedly authorized to disclose confidential client information to carry out the representation? (Q)

Answer 69

Under the MRPC, a lawyer is impliedly authorized to use or disclose confidential client information if it is appropriate to do so as part of the lawyer’s representation. The MRPC do not provide a single, comprehensive definition of when disclosure is appropriate under this rule. However, the MRPC suggest that disclosure may be allowed in situations such as: (1) a lawyer admitting a fact that cannot be disputed before a tribunal and (2) a lawyer making a disclosure that contributes to a satisfactory resolution of a matter within the representation. In addition, lawyers within a firm may disclose a client’s confidential information to one another as part of the representation, unless the client has given instructions that information should be shared only with specific lawyers.

Question 70

A lawyer worked at a law firm with 700 attorneys. The lawyer was representing a client in a divorce proceeding. The lawyer had lunch with another lawyer at the law firm in the firm’s private cafeteria and discussed the client’s case during lunch. The client had not given any restrictions on which lawyers at the firm could be given information about the divorce matter.

Under the MRPC, was the lawyer impliedly authorized to discuss the client’s case with the other lawyer at the law firm? (Q)

Answer 70

Yes. Under the MRPC, the lawyer was impliedly authorized to discuss the client’s case with the other lawyer at the law firm. Lawyers in a law firm may, in the course of the firm’s practice, disclose to each other information relating to a client of the firm, unless the client has instructed that particular information be confined to specific lawyers at the firm.

Here, the lawyers worked at the same law firm, and they were therefore entitled to communicate with one another about the firm’s work. They were in the firm’s private cafeteria, ensuring that no one who worked outside the law firm could hear their discussion. The client had not expressly limited disclosure of the client’s information to specific lawyers at the firm. Thus, the lawyer was impliedly authorized to discuss the client’s case with the other lawyer at the firm.

Question 71

Must a lawyer obtain a client’s permission to disclose the client’s confidential information if the lawyer is seeking confidential legal advice regarding whether the lawyer’s course of conduct complies with the MRPC? (Q)

Answer 71

No. Under the MRPC, a lawyer generally is not required to obtain a client’s permission to disclose the client’s confidential information if the lawyer is seeking confidential legal advice regarding whether the lawyer’s course of conduct complies with the MRPC. The MRPC permit a disclosure to be made for this purpose because of the importance of a lawyer’s compliance with the MRPC.

Question 72

Under what circumstances do the MRPC permit a lawyer to reveal information relating to the representation of a client without informed consent or implied authorization? (Q)

Answer 72

A lawyer may reveal information related to the representation that the lawyer reasonably believes necessary to:

prevent reasonably certain death or bodily harm;
prevent a crime or fraud that is reasonably certain to cause financial or property-related harm, as to which the client has used or is using the lawyer’s services;
prevent or rectify a financial or property-related injury that has resulted or is reasonably certain to result from a crime or fraud furthered by the client’s use of the lawyer’s services;
obtain legal advice about the lawyer’s compliance with the MRPC;
comply with a law or court order;
establish claims or defenses in a formal controversy between the lawyer and the client or against the lawyer based on the client’s conduct;
respond to allegations in a legal claim or disciplinary proceeding concerning the representation; or
detect and resolve conflicts of interest.

Question 73

A lawyer represented the husband in a divorce. The divorcing couple owned a business, the division of which was an issue in the divorce. During the representation, the husband revealed to the lawyer that for the past 10 years he had paid himself an annual bonus from the business’s earnings without his wife’s knowledge and had kept the money in a bank account of which the wife was unaware. The lawyer was uncertain whether the husband’s actions amounted to a crime or a fraud. Without informing the husband, the lawyer consulted a second lawyer, in a different firm, for advice on the lawyer’s ethical obligations. In the consultation, the husband’s lawyer showed the second lawyer relevant documents from which someone could readily determine the identities of the business and the parties.

Did the husband’s lawyer violate the MRPC by revealing client information to the second lawyer? (Q)

Answer 73

No. A lawyer normally must not reveal information relating to the representation of a client without express or implied authorization. However, a lawyer may reveal confidential information without this authorization if the lawyer reasonably believes that the information is necessary to obtain legal advice about the lawyer’s own compliance with the rules of professional conduct.

Here, the husband’s lawyer was reasonably concerned about his own ethical obligations in light of the husband’s possible crime or fraud. In obtaining ethical advice from the second lawyer, it was reasonable for the husband’s lawyer to show the second lawyer relevant documents so the second lawyer could understand the situation and render competent advice. Accordingly, it was reasonable for the husband’s lawyer to reveal client information in this process, and the husband’s lawyer did not violate the MRPC.

Question 74

Before disclosing information under an exception to the MRPC’s general confidentiality rule, should a lawyer attempt to convince the client to act in a way that makes the disclosure unnecessary? (Q)

Answer 74

Yes. When possible, before disclosing information under an exception to the MRPC’s general confidentiality rule, a lawyer should attempt to convince the client to act in a way that makes the disclosure unnecessary. This procedure both protects client confidentiality and encourages clients to comply with the law.

Question 75

Under the MRPC, if a court orders a lawyer to reveal confidential information, what procedure must the lawyer follow in responding to the order? (Q)

Answer 75

Under the MRPC, in responding to a court order requiring disclosure of confidential information, the lawyer must make a reasonable effort to notify the client of the order and consult with the client to obtain informed consent to the disclosure. If the client does not consent and instead wants to challenge the order, the lawyer should assert on behalf of the client all nonfrivolous claims that the court’s order is not authorized by other law or that the information sought is protected against disclosure by the attorney-client privilege or other applicable law. If the court rejects these arguments, the lawyer must consult with the client about appealing the ruling. If no appellate review is sought, and the client gives informed consent to the disclosure, the lawyer must make the disclosure.