Client Confidentiality

Question 1

What is the difference in attorney client privilege and the duty of confidentiality?

Answer 1

Attorney client privilege prevents a tribunal from requiring an attorney from disclosing confidential communications with the client. Duty of confidentiality protects all information learned in connection with a representation from all disclosure (ethical duty)

Question 2

Do attorney client privilege and the duty of confidentiality apply to consultations with potential clients?

Answer 2

Yes - both apply

Question 3

Who is considered an attorney for purpose of attorney client privilege?

Answer 3

Any person the client consults to obtain legal assistance. Could be anyone the client reasonably thinks is an attorney. Even if practicing without a license. But the attorney must be acting in their capacity as an attorney, not as a friend, business advisor or family member

Question 4

What communications are protected by attorney client privilege.

Answer 4

Communications between attorney (AND AGENTS) and client (AND AGENTS). Agents include anyone that is there to support the attorney client relationship

The communications must relate to the professional relationship between the attorney and client

Question 5

Who is the client for purposes of attorney client privilege?

Answer 5

Anyone seeking legal services (even if no formal relationship ever starts)

Question 6

What are some key limitations of attorney client privilege?

Answer 6

• Does not cover communications NOT made for legal assistance
• Does not cover the mechanics of the relationship (identity of the client, the fee arrangement, and the fact that attorney is representing client) unless revealing these gives away other privileged information
• Does not cover PRE-EXISTING DOCUMENTS and things. Docs/things only covered if made for the purpose of providing legal assistance (if something would be discoverable in the client’s hands, it would also be discoverable in the attorneys hands
• The communication must be KEPT CONFIDENTIAL. If disclosed intentionally to any third party (who is not furthering the atty-client relationship), privilege destroyed. Evesdroppers don’t count

Question 7

Who actually as the attorney-client privilege?

Answer 7

The client. But the attorney must assert it on behalf of the client if the client is not there. It is a rule of evidence

Question 8

How is attorney client privilege waived?

Answer 8

By failing to object, by disclosing to a third party. If you disclose most of a document to a third party the remainder of the document is not privileged

Also waived by asserting a claim or defense that puts the legal services at issue in the case. (e.g. an appeal based on ineffective assistance of counsel)

Question 9

What are exceptions to attorney client privilege?

Answer 9

• If a client seeks legal services to engage in or assist in a FUTURE crime or fraud
• If a dispute arises out of the atty-client relationship that requires the attorney to defend themselves
• Litigation between former joint clients of the same attorney
• Competency or intent of a client who seeks to dispose of property through a will or an inter vivos transfer

Question 10

What is the work product doctrine and what does it cover?

Answer 10

Anything made in anticipation of litigation (e.g. report from a witness, atty notes, litigation fact memo) generally isn’t discoverable UNLESS opponent shows substantial need and undue hardship (but even in that case, mental impressions or opinions do not need to be disclosed)

Question 11

Does third party knowledge affect the duty of confidentiality?

Answer 11

No. Unless it becomes generally known. Information is not generally known when it can be obtained only by means of special knowledge or substantial difficulty or expense

Question 12

When can confidential information be disclosed?

Answer 12

1) With informed consent of client

2) With implied consent of client

Question 13

The duty of confidentiality prevents disclosure OR USE of confidential information if ____

Answer 13

the use will disadvantage the client. (doesn’t matter if the lawyer is personally using or if someone else is)

Cannot disclose even if it will not disadvantage the client

(can always disclose with the client’s informed consent)

Question 14

What are exceptions to the duty of confidentiality?

Answer 14

D,FiSU,D,A,ID C,L/O
reasonably certain Death or substantial bodily harm
Prevent or rectify financial harm IF Lawyer’s services were used in furtherance
Defend self in dispute concerning lawyer’s conduct
Detect/resolve COI due to change of employment, merger or sale of practice (after substantial talks have begun and cannot compromise atty-client privilege or otherwise screw client)
Comply with court order/law

(+ informed consent or implied authority)

Question 15

Which trumps which: Candor to the tribunal or duty of confidentiality?

Answer 15

Candor to the tribunal trumps the duty of confidentiality

Question 16

What duty does an attorney have to safeguard information that they are storing that is covered by the duty of confidentiality?

Answer 16

Lawyer must make reasonable efforts to prevent disclosure or access of confidential information. Lawyer is responsible for leaks that occur from the agents that they outsource work to

Question 17

What kind of information does attorney client privilege protect?

Answer 17

confidential communications between the attorney and the client (or the agents of either of them)

Question 18

What kind of information does the duty of confidentiality protect?

Answer 18

covers confidential communications and all other information that the attorney obtains from any source related to the representation

Question 19

Does the duty of confidentiality cover disclosure and use? Does the attorney client privilege cover disclosure and use?

Answer 19

Duty of confidentiality covers disclosure and use

Attorney client privilege covers disclosure to a tribunal only

Question 20

Which conversations are covered by the attorney client privilege when the client is a corporation?

Answer 20

1) employee conversation with lawyer at the direction of the employee’s superior
2) The employee knows that the purposes of the communication is to obtain legal advice for the corporation
3) The communication concerns a subject within the scope of the employees duties to act for the corporation

(The communication must relate to the representation to be covered)

Question 21

D throws the incriminating revolver in a trash can and then tells his lawyer about it. Explain how a lawyer can navigate this to keep info privileged and not unlawfully conceal evidence.

Answer 21

the Revolver itself is not privileged, and if L takes possession of it, L is obligated to turn it over to the proper authorities (tampering with evidence)

The communication from D to L about the revolver is privileged, and L can look inside the trashcan to verify D’s story. No one can make L disclose the location of the revolver

Question 22

D tells L critical information with D’s mom present. Is attorney client privilege waived?

Answer 22

Only if Mom was there to further the attorney client relationship (e.g. by providing psychological support)

Question 23

D and L discuss critical information in a crowded hallway where bystanders could clearly overhear (although its not clear anyone was paying attention). Is attorney client privilege waived?

Answer 23

Yes. This is like having someone present who is not there to further the attorney client relationship

Question 24

D and L discuss critical information in a private conference room and an eavesdropper listens in without them noticing. Is privilege waived?

Answer 24

No

Question 25

How long does attorney client privilege last?

Answer 25

Forever unless waived. Does not terminate at death (subject to exceptions relating to the deceased’s disposition of property)

Question 26

L wants to disclose some of D’s information in a client negotiation, what confidential information can L disclose?

Can L talk about D’s confidential information with other lawyers/support staff in L’s firm? outside L’s firm?

Answer 26

Implied authority says that L can disclose confidential information if that will serve D’s interests in the negotiation (Same goes in litigation).

Yes. Can talk with other lawyers (and support staff) internal and external in the firm unless instructed otherwise by the client.

Question 27

L gives D’s confidential information to support staff (internal and external) under implied authorization. What is L’s responsibility now?

Answer 27

Must take reasonable steps as to assure that those receiving the information (regardless if internal or external to the firm) take reasonable steps to preserve the confidentiality of the information.

Question 28

I want to ask for help from another attorney but I can’t share the confidentiality information with them, so I use a hypothetical. Violation?

Answer 28

The hypothetical must be discreet enough to preclude any reasonable change that the fellow lawyer will be able to deduce the identity of the client or the situation at hand.

Question 29

One of the exceptions to the duty of confidentiality relates to death - explain it.

Answer 29

A lawyer MAY reveal confidential information TO THE EXTENT NECESSARY to prevent REASONABLY CERTAIn death or substantial bodily harm.

Applies regardless what will cause the harm (need not be the client, criminal, or imminent! - only reasonably certain)

Question 30

One of the exceptions to the duty of confidentiality relates to financial harm - explain it.

Answer 30

A lawyer MAY reveal confidential information TO THE EXTENT NECESSARY to PREVENT/MITIGATE a client crime or fraud that is REASONABLY CERTAIN to result in SUBSTANTIAL financial harm IF the client is USING or has USED the LAWYER’s SERVICES

Question 31

One fo the exceptions to the duty of confidentiality is a dispute concerning the attorney’s conduct (e.g. overbilling, unreasonable fees, malpractice). What precautions should the attorney use when invoking this exception?

Can the attorney use this exception before a formal complaint/suit has been filed against them?

Answer 31

1) reveal only what is necessary
2) attempt to limit the disclosure to those who need to know it
3) obtain protective orders or take other steps to minimize the risk of unnecessary harm to the client

Yes (called “preemptive defense”)

Question 32

I want to get ethics advice, so I disclose confidential information. Am I in trouble?

Answer 32

No, as long as you only disclosed enough confidential information as was necessary to get the ethics advice

Question 33

One of the exceptions to the duty of confidentiality is detecting and resolving conflicts of interest - explain it and the 4 conditions

Answer 33

Can disclose limited confidential information to detect and resolve conflicts of interest subject to four conditions:

1) Disclosure can only occur after substantive discussions regarding the employment/merger/purchase/sale have occurred
2) Disclosure must be the minimum necessary to resolve the conflict of interest
3) Disclosed information must not compromise the attorney-client privilege or otherwise prejudice clients
4) Disclosed information can only be used to the extent necessary to detect and resolve any conflicts of interest

Question 34

What is the catch-all exception to the duty of confidentiality?

Answer 34

May disclose confidential information as required by law or a court order. Must make sure the statute purports to supersede the privilege and ethical duty, must communicate the fact that you will disclose to the client

Question 35

What level of precaution is required of lawyers when safeguarding a client’s confidential information from inadvertent or unauthorized disclosure?

Answer 35

“Reasonable efforts” (function if sensitivity of the client’s information, cost of additional safeguards, and difficulty of implementing the safeguards

Question 36

A prospective client goes on to another lawyer. You see that he testifies to things that are certainly false based on what he told you in your preliminary conversations. Should you inform the court of the lies?

Answer 36

No, you can’t because correcting false information to the court is not an exception to the duty of confidentiality.

(The crime of perjury did not involve your services. There is also no exception to confidentiality to prevent fraud on the court if the attorney is not appearing before the court)

Question 37

A lawyer uses information covered by the duty of confidentiality in a way that does not disadvantage the prospective/current/former client but does make the lawyer a lot of money. Subject to discipline?

Answer 37

No, not subject to discipline, but will likely be subject to civil liability that requires disgorgement of profits.

(Can’t profit off of confidential information even if the use of the confidential information does not hurt the client (or even if it helps the client))