Chapter 4

Question 1

In law, confidentiality goes hand-in-hand with (1). The attorney-client privilege is (2) and can only be waived by the (3). The advice sough must be (4)–not personal or business. (5) are also protected even if the lawyer is not retained. Privilege pertains to (6) only and is (7).

Answer 1

1. full disclosure 2. unqualified 3. client 4. legal 5. Initial consultations 6. communication 7. indefinite (beyond representation and even death)

Question 2

Privilege cover communication made (1) or (2) a lawyer, so that it covers others working on the matter. However, communications with (3) are not protected

Answer 2

1. directly to 2. in the presence of 3. nonlawyer legal service providers

Question 3

Rules in whether (1) result in the loss of privilege vary and will generally be protected if they (2).

Answer 3

1. disclosures to third persons 2. further the representation

Question 4

For communications to be protected, they must be made in a (1) without anyone present who would (2). An (3) to a private setting cannot destroy privilege. Some disclosures are specially protected and do not result in a waiver of privilege, such as (4) or (5).

Answer 4

1. confidential setting 2. negate the privilege (family members, etc.) 3. eavesdropper 4. plea bargaining 5. settlement negotiations

Question 5

(1) by corporations to cooperate has been ruled not to constitute waiver of privilege.

Answer 5

1. forced disclosure

Question 6

Privilege does not usually extend to (1) or (2), but there are exceptions. The (3) between a lawyer and client is also not privileged–there are also exceptions to this rule, such as when disclosure will lead to (4). Bringing a (5) to an attorney does not make it privileged, though documents already privileged will remain so in the (6). (7) of a crime is not privileged and in fact might be required disclosure, though its (8) may be privileged.

Answer 6

1. identity of a client 2. client’s whereabouts 3. fee arrangement 4. other privileged information 5. preexisting document 6. attorney’s possession 7. physical evidence 8. source

Question 7

(1) might destroy privilege–the rule is inconsistent between jurisdictions. Some say that it is not destroyed if a (2) was made not to disclose. Those that oppose the automatic waiver rule recognize that (3). Counsel often enter into (4) or (5) agreements where they agree not to review and to return privileged information.

Answer 7

1. inadvertent disclosure 2. good-faith effort 3. privilege is the client’s and consent is needed to waive it 4. non-waiver 5. claw-back

Question 8

3 standards cited by Federal Rules of Evidence for non-waiver in inadvertent disclosure

Answer 8

1. disclosure is inadvertent 2. holder of privilege took reasonable steps to prevent disclosure 3. holder promptly took reasonable steps to rectify the error

Question 9

Privileged information may be disclosed by a lawyer when the client calls into qustion the attorney’s (1) through (2), (3), (4) or a (5).

Answer 9

1. professional competence 2. criminal charges 3. malpractice suit 4. disciplinary action 5. contention of ineffective counsel on appeal from a criminal conviction

Question 10

When an attorney represents two clients who later become (1), communications (2) are not protected. However (3) between counsel is generall protected.

Answer 10

1. adversaries 2. relating to the joint matter 3. pooled information

Question 11

Confidential communications about a (1) or (2) a clilent is planning are not protected. The trend is toward (3).

Answer 11

1. future crime 2. fraud 3. court-ordered disclosure

Question 12

2 tests used in determining who is protected under client privilege in a corporate setting

Answer 12

1. control group test (privilege = confodential communications between attorney and management personnel responsible for acting on behalf of corporation) 2. subject matter test (broader; all employees who communicate with attorney for legal service)

Question 13

In a corporate setting, the (1), not the (2), holds and may waive the privilege. A question that comes into play, too is whether an (3) is protected under attorney-client privilege.

Answer 13

1. corporation 2. employee 3. internal audit or investigation

Question 14

The (1) resulted in circumstantial waiver of corporate attorney-client privilege in order to protect customers from injury

Answer 14

Sarbanes-Oxley Act

Question 15

If protected communications are sought in a court proceedign, the attorney must respond to the court and (1). If the court orders the lawyer to testify/produce documents, he or she may (2) and (3). Often a court determines whether info needs to be disclosed (4).

Answer 15

1. invoke the privilege 2. refuse 3. appeal the ruling 4. in camera

Question 16

If an attorney breaks the privilege without client consent or court order, the client may seek to (1) or (2) testimony or seek (3). He may also (4) and (5).

Answer 16

1. suppress 2. enjoin 3. dismissal of the case 4. sue for malpractice 5. file a complain with disciplinary authorities

Question 17

Some states allow limited disclosure for specific purposes, such as (1).

Answer 17

1. challenge to the validity of a will (conversations with the dead)

Question 18

The (1) protects lawyers from disclosure of information prepared in anticipation of litigation. This encompases two kinds of material: (2) and (3).

Answer 18

1. work product doctrine 2. mental impressions (unqualified privilege–strategies, theories, etc.) 3. informational material (qualified–research, other side may ask court for use of it if no other alternatives)

Question 19

Work product prepares material covered only in (1), so that some material such as investigator’s reports made before there was a (2) may be discoverable.

Answer 19

1. anticipation of litigation 2. clear indication that a lawsuit would be filed

Question 20

3 alternative time frames for protection of work product

Answer 20

1. termination at litigation 2. indefinite continuation 3. termination at litigation except as to future related litigation

Question 21

Special work product rules apply to (1)–discovery of dataases under the information prong is gerneally discoverable if documents are (2), as opposed to includeing notes, being paraphrased, etc.

Answer 21

1. electronic discovery 2. input verbatim

Question 22

In cases with massive numbers of documents, lawyers can declare a (1) for large categories of documents. Most judges will (2). Paralegals can prepare a (3) claimed as privilege, stating also the (4). Work product can be (5) by implied or actual consent.

Answer 22

1. blanket privilege 2. not allow this (need case-by-case) 3. log of documents 4. grounds for privilege, senders and recipients 5. waived

Question 23

6 exceptions allowing permissive disclosure under ethics rules

Answer 23

1. prevent reasonably certain death or substantial bodily injury 2. prevent client from committing a crime or fraud that will harm property/finances 3. prevent, mitigate, rectify injury 4. secure legal advice about the lawyer’s compliance with ethics rules 5. establish attorney’s claim or defense in a dispute between lawyer and client 6. comply with a court order/law

Question 24

9 common-sense considerations about confidentiality

Answer 24

1. code numbers instead of names 2. dispose of old files/papers properly 3. computer screens not visible 4. watch intercome/speaker phone conversation 5. segregation and labeling of privileged files 6. watch casual conversation 7. meetings in private (closed office, conference room) 8. watch cell phone conversations in public 9. watch whom emails are sent to

Question 25

3 strategies for added protection of confidential information

Answer 25

1. include notes, etc. plus limited access in databases to protect work-product 2. Confidentiality agreements 3. ensure people in firm do not use confidential information for their own gain (securities trading, purchase of real estate, etc.)

Question 26

6 technological considerations with confidentiality

Answer 26

1. Faxes should be sure to go to the right person and have confidentiality notices 2. cell phone transmissions can be intercepted 3. servers should be secure (watch “cloud computing) 4. passwords, identification cards 5. security systems, antivirus software, regular backups 6. email (firewalls, closed networks, encryption, digital courier services, removal of metadata from drafts, tracking of email forwarded to others)

Question 27

Do not use (1) for highly sensitive communications. Inform clients about the (2) with electronic communication and obtain (3) to use it. Label all confidential communications as (4) and include (5) if it is received inadvertently.

Answer 27

1. email 2. risks 3. written consent 4. privileged 5. what to do

Question 28

Limit recipients of privileged email to those (1) and warn recipients not to (2). Do not send email to a mailbox that can be (3). Do not send documents without (4) or converting them to (5).

Answer 28

1. absolutely essential 2. send to others 3. accessed by others than the client 4. scrubbing them 5. PDF

Question 29

Do not (1) emails dierctly if received from opposing counsel, and be careful about (2). Beware of misdirecting an email when using the (3) function for addresses.

Answer 29

1. forward 2. “replying to all” 3. “auto-fill”

Question 30

6 policies that firms should have regarding confidentiality

Answer 30

1. no personal or inappropriate email 2. no accessing another’s email 3. confidential material only to those who need it 4. don’t leave email open 5. procedures for sending/storing privileged info 6. establish when employer has the right to review employee’s email messages

Question 31

2 things paralegals need to know when tasked with document production

Answer 31

1. what documents to look for 2. privileged documents (for flagging or removal)

Question 32

3 things that someone in reception of privileged information should do

Answer 32

1. refrain from viewing/view only to extent to determine how to proceed 2. notify adversarial lawyer about reception of the materials 3. find out from court or adversarial lawyer what to do

Question 33

the rule of evidence that protects confidential communications between a lawyer and client madei n the course of the professional relationship

Answer 33

attorney-client privilege

Question 34

limits attorney-client privilege to confidential communications between the attorney and top management personnel

Answer 34

control group test

Question 35

applies attorney-client privilege to all corporate employees who communicate in condience with the attorney for the purpose of enabling the attorney to render legal services

Answer 35

subject matter test

Question 36

proceedings held in the judge’s chambers without the jury or public present

Answer 36

in camera

Question 37

protects the work done by a lawyer and his or her employees and agents in the process of representing a client in litigation

Answer 37

work product doctrine

Question 38

an agreement entered into between a law firm and an employee or other agent in which the employee or agent agrees to keep client information confidential

Answer 38

confidentiality agreement