Clas 2: Confidentiality (Ch. 3)

Question 1

Rule 1.6(a) Confidentiality of Information

Answer 1

A lawyer shall not reveal information relating to representation of a client unless

• the client gives informed consent [explicit authorization],
• the disclosure is impliedly authorized in order to carry out the representation, or
• the disclosure is permitted by paragraph (b).

Question 2

Rule 1.6 Comment 4:

A lawyer’s use of a hypothetical to discuss issues relating to the representation is permissible so long as . . . .

Answer 2

. . . so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved.

Question 3

True or False:

Rule 1.6 prohibits disclosure of any information a lawyer learns in connection with a matter the lawyer is handling for a client’s case, regardless of whether the lawyer receives the information from the client or from another source.

Answer 3

True. The duty of confidentiality (R. 1.6) covers all information relating to the representation of a client, regardless of where the lawyer learned the information (client, third party, associated documents, etc.).

Question 4

To what extent, if any, must each of the following types of information be protected as confidential?

1. Information that is “generally known”?
2. Personal information relating to the client that the client would not want disclosed?
   3, Information learned from the client?
3. Information learned from photos?documents, interviews, observations, or other sources?
4. Information acquired before the representation begins (such as during a preliminary consultation) and after the representation terminates?
5. Notes or memoranda hat the lawyer creates.

Answer 4

1. Information that is generally known need not be protected as confidential.
2. Personal information relating to the client must be protected as confidential, especially if the client does not want it disclosed.
3. Information learned from the client must be protected as confidential, unless it is unrelated to the representation.
4. Information learned from photos, documents, interviews, observation, or other sources must be protected as confidential, as long as it relates to the representation.
5. Information acquired before and after the representation is protected to the degree that it relates to the representation.
6. If they relate to the representation of a client, notes or memoranda are protected by the duty of confidentiality.

Question 5

Things that could happen to the lawyer who reveals confidential information:

Answer 5

1. Subject to professional discipline (disbarment, suspension, or reprimand by the bar or the court or both)
2. Liability in tort or contract for
   - Negligent breach of duty
   - Intentional breach of duty
3. Disqualified from representation of client(s)
4. Enjoined by a court from further revelation

Question 6

Restatement (Third) of the Law Governing Lawyers § 59: Confidential Client Information

Answer 6

A lawyer shall not disclose information relating to the representation of a client, other than information that is generally known.

Question 7

Difference between Rest. (3d) of the L. Gov. Lawyers § 59 and 60

Answer 7

• MRPC Rule 1.6 prohibits the revelation of any information related to the representation of a client, except as permitted by the rules
• Restatement (3d) of the L. Gov. Lawyers prohibits revelation of confidential information only if “there is a reasonable prospect that doing so will adversely affect a material interest of the client or if the client has instructed the lawyer not to use or disclose such information.”

Question 8

Does the ABA say that a lawyer may communicate with clients by e-mail without breaching the confidentiality rule?

Answer 8

Yes. Methods of communication that offer a reasonable expectation of privacy are permissible and that unencrypted e-mail ordinarily affords sufficient privacy.

• ABA Standing Comm. on Ethics * Prof. Resp. Formal Op. 99-413

Question 9

Rule 1.6(b): A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

Answer 9

(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;
(3) to prevent, mitigate, or rectify substantial injury to the financial interest or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;
(4) to secure legal advice about the lawyer’s compliance with these rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a client charge or civil claim against the lawyer based on conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;
(6) to comply with a court order; or
(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client . . . .

Question 10

If a client consents to a lawyer’s revelation of confidences, does the client waive the protection of this rule?

Answer 10

Yes, but only to the extent that the lawyer has given the client full information about the potential risks.

Clients may agree that the will have no secrets from each other concerning their joint representation, or they may agree that they will know nothing about each other’s representation.

Question 11

True or False:

A client’s willing consent to reveal otherwise confidential information does not always releases a lawyer to reveal it.

Answer 11

False.

A client’s willing consent to reveal otherwise confidential information always releases a lawyer to reveal it.

Question 12

Rule 1.2(d)

Answer 12

A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.

Question 13

Rule 1.2(d), Comment 10

Answer 13

The lawyer is required to avoid assisting the client, for example, by [:]
[-] drafting or delivering documents that the lawyer knows are fraudulent or
[-] by suggesting how the wrongdoing might be concealed.

A lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client in the matter. See Rule 1.16(a).

In some cases, withdrawal alone might be insufficient. It may be necessary for the lawyer to:
[-] give notice of the fact of withdrawal and
[-] to disaffirm any opinion, document, affirmation, or the like.

Question 14

What is fraud (generally, as defined by the book)?

Answer 14

The book says that:

Fraud refers to deliberate deception.

However, fraud is defined somewhat differently in the rules of legal ethics, tort law, criminal law, and contract law.

Question 15

How does the ABA MRPC define “fraud”?

Answer 15

Rule 1.0(d):

Fraud is “conduct that is fraudulent under the substantive or procedural law of he applicable jurisdiction and has a purpose to deceive.”

Rule 1.0(d), Comment 3:

The drafters didn’t intend to include “merely negligent misrepresentation or negligent failure to apprise another of relevant information. For purposes of these rules, it is not necessary that anyone has suffered damages or relied on the misrepresentation or failure to inform.”

Question 16

How does the Restatement (2d) of Torts define “fraud”?

Answer 16

Rest. (2d) of Torts § 525 (1977):

For the purposes of civil liability, one must demonstrate that the other person:

(1) intentionally
(2) made a misrepresentation of fact, an intention, or a law
(3) with the intention of inducing the other person to act or to refrain from acting in reliance on the misrepresentation, and
(4) that the plaintiff suffered financial loss
(5) as a result of reliance on the misrepresentation.

Question 17

There are many different criminal definition of “fraud,” but in what way does any and all criminal definitions of fraud differ from the tort definition?

Answer 17

Criminal law does not require a showing of harm to find an act fraudulent.

Question 18

Fraud Under Contract Law: True or False:

1. A contract may be voidable if one party was induced to sign it by a fraudulent (intentional) misrepresentation.
2. Under contract law, an action for recission based on a material misrepresentation is recognized even if there was no intent to deceive.
3. An action for recission of contract may be based on a false statement or a nondisclosure of a fact.
4. A contract is not voidable for “fraud” unless the same “fraud” would is subject the actor to tort liability or to criminal sanctions.

Answer 18

1. True.
2. True. Contract law differs in this way from tort and criminal law, which require that the misrepresentation be deliberate.
3. True.
4. False. A contract could be voidable for “fraud” even though the same “fraud” would not subject the actor to tort liability or to criminal sanctions. (contracts = broader)

Question 19

Rule 3.3(b), dealing with candor toward a tribunal, requires…

Answer 19

… “reasonable remedial measures, including, if necessary, disclosure to the tribunal” in a ituation which a lawyer is representing a client in an adjudicative proceeding and learns that someone (not just the client) “is engaging or has engaged in criminal or fraudulent conduct related to the proceeding.”

Question 20

Rule 1.0(f) [re: inference of wrongful action]

Answer 20

A lawyer’s intent to facilitate or encourage wrongful action may be inferred if in the circumstances it should have been apparent to the lawyer that the client would employ the aistance to further the client’s wrongful conduct, and the lawyer nonetheless provided the assistance.”

Question 21

Examples of assisting fraud include…

Answer 21

… Restatement (3d) of L. Gov. Lawyers § 94:

1. Advising a client to destroy documents;
   
   • [Resulted in obstruction of justice charge]
2. Advising a client to conceal the identity of the owners of a business when applying for a liquor license;
   
   • [Resulted in disciplinary action]
3. Advising a lawyer to leave the state to avoid prosecution.
   
   • [Resulted in disciplinary action]

Question 22

Rule 4.1(b) bars a lawyer from

Answer 22

knowingly failing to disclose a non-confidential material fact when disclosure is necessary to avoid assisting a client’s fraudulent act.

Rule 4.1, Comment 1: Misrepresentation can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements.

Question 23

Under Rules 1.6(b)(2) and (b)(3), a lawyer may reveal client criminal or fraudulent conduct whether it is past, ongoing, or future, if:

Answer 23

1. There is reasonable certainty that the client’s conduct will result in substantial financial injury or substantial injury to the property of another person,
2. The client is using or has used the lawyer’s services in committing the act(s), and
3. The purpose of revealing confidences is to prevent the criminal or fraudulent act or to prevent, mitigate, or rectify the harm resulting from the act(s).

Rule 1.6, Comment 8: If the criminal or fraudulent conduct is past, the client did not use the lawyer’s services to assist in that conduct, and the client has hired the lawyer for representation relating to the conduct, the lawyer may not reveal information under Rule 1.6(b)(3).

Question 24

True or False:

1. Rule 1.6 allows a lawyer who has not assisted a client’s financial crime or fraud to make a disclosure to protect another person from injury.
2. A lawyer may reveal confidences “o prevent reasonably certain death or substantial bodily harm” regardless of whether the lawyer’s work may have contributed to the harm.
3. A lawyer may not reveal confidences to warn a person reasonably likely to be a victim of fraud which their client plans to commit if the client has not used and is not using the lawyer’s services to commit the fraud.

Answer 24

1. False
2. True. See Rule 1.6(b)(1)
3. True.

Question 25

The Sarbanes Oxley Act was passed by Congress to ____1_____. Section 307 of the Sarbanes-Oxley Act authorized the __2_ to promulgate tough new disclosure rules for professionals, including lawyers, who practice before it and who became aware of clients’ _3__.

Answer 25

1. prevent further episodes of massive corporate fraud (such as Tyco, Enron-Arthur Andersen, WorldCom, and HealthSouth).
2. Securities Exchange Commission (SEC)
3. fraud.

Question 26

True or False:

1. Rule 1.6 allows a lawyer who has not assisted a client’s financial crime or fraud to make a disclosure to protect another person from injury.
2. A lawyer may reveal confidences “o prevent reasonably certain death or substantial bodily harm” regardless of whether the lawyer’s work may have contributed to the harm.
3. A lawyer may not reveal confidences to warn a person reasonably likely to be a victim of fraud which their client plans to commit if the client has not used and is not using the lawyer’s services to commit the fraud.

Answer 26

1. False
2. True. See Rule 1.6(b)(1)
3. True.

Question 27

True or False:

A lawyer may not reveal information under Sarbanes-Oxley if that lawyer is prohibited by state law or state ethics rules from revealing information.

Answer 27

False.

Even if a lawyer is prohibited by state law form revealing information about a fraud (e.g. because it was committed without the assistance of the lawyer’s services), the lawyer may report the fraud to the SEC under Sarbanes-Oxley because federal law preempts contrary state law.

Question 28

Sarbanes Oxley § 307:

Answer 28

Requires a corporate lawyer who learns of illegal activity being committed by the company’s management to tell them to stop, and tell the board of directors if they don’t stop.

Question 29

Rule 4.1(b)

Answer 29

In the course of representing a client a lawyer shall not knowingly . . . fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act, unless disclosure is prohibited by Rule 1.6.

Rule 4.1, Comment 3:

”. . . . If the lawyer can avoid assisting a client’s crime or fraud only bydisclosing this information, then under paragraph (b) the lawyer is required to do so, unless the disclosure is prohibited by Rule 1.6.”

Question 30

Sarbanes Oxley § 307:

Answer 30

Requires a corporate lawyer who learns of illegal activity being committed by the company’s management to tell them to stop, and tell the board of directors if they don’t stop.

Question 31

Rule 4.1(b)

Answer 31

In the course of representing a client a lawyer shall not knowingly . . . fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act, unless disclosure is prohibited by Rule 1.6.

Rule 4.1, Comment 3:

”. . . . If the lawyer can avoid assisting a client’s crime or fraud only bydisclosing this information, then under paragraph (b) the lawyer is required to do so, unless the disclosure is prohibited by Rule 1.6.”

Question 32

Rule 8.4(c): Dishonesty

Answer 32

Prohibits lawyers from engaging in any “dishonesty, fraud, deceit, or misrepresentation.”

Question 33

Rule 1.13: Duty of lawyer representing an organization to call attention to crimes and frauds

Answer 33

Requires the lawyer to call the attention of corporate management to wrongful conduct. If the senior corporate officials do not address the conduct, the rule permits the lawyer to reveal the information to the extent necessary to prevent substantial injury to the organization.

Question 34

Rule 3.3: Duty to reveal client crimes or frauds to tribunals

Answer 34

Explains the circumstances under which a lawyer must disclose to a tribunal that the lawyer’s client or another witness has provided false testimony.

Question 35

Rule 1.16(a): Duty to withdraw rather than assist a client in fraud; discretion to withdraw if client persists in crimes or fraud

Answer 35

1. 16(a) requires a lawyer to withdraw from representing a client if continued representation would result in a violation of the rules.
2. 16(b) permits a lawyer to withdraw from representing a client who persists in criminal or fraudulent conduct.

Question 36

The most basic difference between confidentiality and attorney-client privilege:

Answer 36

The duty to protect confidences is imposed by the ethical rules, violation of which can result in discipline. The ethical rules are more demanding because the require lawyers to protect confidential information whether or not someone is trying to compel the disclosure of information.

The privilege is “evidence law,” which governs what kinds of evidence can be admitted in court. Privilege rules provide that neither lawyer nor client may be compelled to testify in court about protected communications.

Question 37

The Restatement § 60 prohibits a lawyer from using the confidences of a client “if there is a __1__ ______ that [the use] will __2___ _____ a __3___ ______ of a client or if the client has ___4____ the lawyer not to.

Answer 37

1. reasonable prospect
2. adversely affect
3. material interest
   4 instructed

Question 38

The most basic difference between confidentiality and attorney-client privilege:

Answer 38

The duty to protect confidences is imposed by the ethical rules, violation of which can result in discipline. The ethical rules are more demanding because the require lawyers to protect confidential information whether or not someone is trying to compel the disclosure of information.

The privilege is “evidence law,” which governs what kinds of evidence can be admitted in court. Privilege rules provide that neither lawyer nor client may be compelled to testify in court about protected communications.

Question 39

1. Fed. R. Evid. 503 (unadopted)

2. Restatement (3d) of the L. Gov. Lawyers sections 68 to 86

Answer 39

The closest we have to a codification of the rules governing the attorney-client privilege.

Question 40

The duty of confidentiality is very broad. It has some important exceptions, but covers all information “____ __1___ ___ _____” that a lawyer obtains. By contrast, the privilege covers only a relatively small part of that information:the part that involves _____ ___2___ _______ ___ _______ in which the client is ____ __3__ _____ or _____ _4__ _____.”

Answer 40

1. relating to the representation
2. communication between lawyer and client
3. seeking legal advice
4. other legal services

Question 41

1st element of attorney-client privilege:

Communication

Answer 41

Any communication between a lawyer and client over any means of communication may be protected.

The privilege protects only against disclosure of the communication itself, not against disclosure of the underlying facts that might have been communicated.

Question 42

The elements of attorney-client privilege:

Answer 42

1. Communication
2. Privileged Person
3. Communication in Confidence
4. Communication for the Purpose of Seeking Legal Assistance

Question 43

1st element of attorney client privilege:

Communication

Answer 43

Any communication between a lawyer and client over any means of communication may be protected.

The privilege protects only against disclosure of the communication itself, not against disclosure of the underlying facts that might have been communicated.

Question 44

4th Element of attorney-client privilege: Communication for the Purpose of Seeking Legal Assistance

Answer 44

A communication is privileged only if the purpose was obtaining legal assistance.

If a client asks for “business” advice (such as an investment tip), the conversation is not privileged.

Question 45

3rd Element of attorney-client privilege: Communication in Confidence

Answer 45

The client must reasonably believe that the communication is confidential.
- I.e. strangers can’t be around.

Question 46

4th Element of attorney-client privilege: Communication for the Purpose of Seeking Legal Assistance

Answer 46

A communication is privileged only if the purpose was obtaining legal assistance.

If a client asks for “business” advice (such as an investment tip), the conversation is not privileged.

Question 47

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

Answer 47

No. The communication with the lawyer is privileged, but the underlying facts are not (though they might be independently protected by some other privilege, such as the privilege against self-incrimination).

Question 48

Does the attorney-client privilege protect any documents?

Answer 48

Yes. Some papers are privileged, but only if the papers themselves are lawyer-client communications for the purpose of obtaining legal advice.

Question 49

Does the privilege cover a conversation in which a client asks a lawyer for advice or help in committing a crime or fraud?

Answer 49

No. Even if a lawyer-client conversation satisfies all the criteria above for privilege, no privilege attaches if the client consults a lawyer for assistance in committing a crime or a fraud.

Question 50

True or False:

The privilege is waived if the client puts the privileged communication into issue in a case.

Answer 50

True.

E.g. If a client sues a lawyer for malpractice and asserts that the lawyer gave her certain incorrect advice, the lawyer may reveal the details of the relevant conversations for the purpose of self-defense.

Question 51

If a client asks his lawyer for advice about a past act that was criminal or fraudulent, is that communication privileged?

Answer 51

Yes, such communication is privileged so long as the past act is really past. If there is a continuing crime or fraud that results from a past act, there is no privilege. The crime-fraud exception does not apply to past crimes or frauds.

Question 52

Does the privilege cover a conversation in which a client asks for advice about a crime she plans to commit but does not ask for the lawyer to give advice that assists her in the act?

Answer 52

A distinction is made between a request for advice that would help a client to commit a crime or to avoid apprehension, and a request for advice about whether a certain act is permitted under the law. In the latter case, the communication is privileged, at least in most states.

Question 53

Work Product Doctrine

Answer 53

Protects notes and other materials that a lawyer prepares “in anticipation of litigation” from discovery in pretrial civil proceedings.

Applies to documents that a lawyer prepares or collects while working on pending litigation or on a matter in which the lawyer knows that a lawsuit is about to be filed.

Protects information prepared by a lawyer without regard to whether it was communicated to the lawyer in confidence and without regard to whether the lawyer’s client or some other person was its source. The critical element for work product is possession of lawyer-generated information in the lawyer’s mind or private files.

Question 54

What if a client consults a lawyer about a plan that she knows involves a crime or fraud but conceals facts from the lawyer that would reveal the illegality of the scheme?

Answer 54

The lawyer’s knowledge or intentions are irrelevant. Only the client’s intentions are relevant.

Question 55

True or False:

Lawyers who work in the office of a corporate general counsel often collect information for more than one purpose. If certain information would have been collected routinely but was also collected because litigation was anticipated, most courts will grant protection to the information.

Answer 55

False.

Courts will generally deny work product protection to information which would have been collected routinely but was also collected because litigation was anticipated.

Question 56

The work product doctrine’s protection is strongest for…

Answer 56

… documents hat reveal the lawyer’s thoughts, strategies, or mental impressions than it does to other forms of work product.

A lawyer’s notes of his own opinions, theories, observations, or feelings are immune from discovery.

Question 57

Diversified Indus. v. Meredith, 572 F.2d 596, 609 (8th Cir. 1977) [cited by the Court in Upjohn with apparent approval]

Privilege applies in the corporate context when these conditions are met:

Answer 57

1. The communication is made for the purpose of securing legal advice;
2. The employee making the communication does so at the direction of his corporate superior;
3. The superior makes the request so that the corporation could secure legal advice;
4. The subject matter of the communication is within the scope of the employee’s corporate duties; and
5. The communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents.

Question 58

Upjohn Co. v. U.S., 449 U.S. 383 (1981):

[re: federal proceedings applying federal law]

Answer 58

The scope of the attorney-client privilege between an attorney and his corporate client should depend on the ubject matter of the communication, not on who was doing the communication (senior management or lower-level employee).

Communications between lawyers and the lower-level employees who had knowledge of the at-issue bribery were privileged.

Government could repeat the internal investigations conducted by counsel if they wanted the information obtained therefrom.

Question 59

Diversified Indus. v. Meredith, 572 F.2d 596, 609 (8th Cir. 1977) [cited by the Court in Upjohn with apparent approval]

Privilege applies in the corporate context when these conditions are met:

Answer 59

1. The communication is made for the purpose of securing legal advice;
2. The employee making the communication does so at the direction of his corporate superior;
3. The superior makes the request so that the corporation could secure legal advice;
4. The subject matter of the communication is within the scope of the employee’s corporate duties; and
5. The communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents.