CLIENT CONFIDENTIALITY Flashcards
What is the general rule concerning client confidentiality?
lawyer must not reveal any information relating to the representation of the client. A lawyer may, however, reveal such information if the client gives informed consent, or if the disclosure is impliedly authorized to carry out the representation. [ABA
Model Rule 1.6].
Who is the holder of the privilege?
exists for the benefit of the client, not for the benefit of
the attorney. Therefore, the client is the “holder” of the privilege—i.e., the client is the one who can claim or waive the privilege.
Waiver of privilege
A waiver consists of a failure to claim the privilege when there is an opportunity to do so, or the intentional revelation of a significant portion of the privileged communication.
Exceptions to privilege (based on modern evidence laws):
(1) The privilege does not apply if the client seeks the attorney’s services to engage in or assist a future crime or fraud. [See Restatement §82]
(2) The privilege does not apply to a communication that is relevant to an issue of breach (by either the attorney or the client) of the duties arising out of the attorney-client relationship. [Id. §83]
(3) The privilege does not apply in civil litigation between two persons who were formerly the joint clients of the attorney. [Id. §75(2)]
(4) The privilege does not apply in a variety of situations in which the attorney can furnish evidence about the competency or intention of a client who has attempted to dispose of property by will or inter vivos transfer.
Does a lawyer have a duty to invoke the privilege?
Yes lawyer must claim it on client’s behalf, if the client has not waived and someone tries to obtain privileged information when the client is not present.
Work Product Immunity
Generally, material prepared by a lawyer for litigation or in anticipation of litigation is immune from discovery or other compelled disclosure unless the opposition shows a substantial need for the material and an inability to gather the material
without undue hardship.
Duty of confidentiality is not destroyed by third persons presence (unlike attorney - client privilege) why?
Confidential information remains confidential even if it is known to others, unless the information becomes generally known. Whether information is generally known depends on all the
surrounding circumstances, but information is not generally known when it can be obtained only by means of special knowledge or substantial difficulty or expense.
Exceptions to Exceptions to the Duty of Confidentiality
(1) Client’s informed consent - which means that the client agrees to a proposed course of action after the lawyer has adequately explained the risk and reasonable alternatives.
(2) Implied Authority
(3) Disclosure to Prevent Death or Substantial Bodily Harm -
1.6(b)(1) permits a lawyer to reveal the client’s confidential information to the extent that the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm.
(4) Prevent or Mitigate Substantial Financial Harm - rom committing a crime or fraud that is reasonably
certain to result in substantial financial harm to someone, if the client is using or has used the lawyer’s services in the matter. The same is true if the client has already acted, and the lawyer’s disclosure can prevent or mitigate the consequent financial harm.
(5) Dispute Concerning Attorney’s Conduct
An attorney may reveal a client’s confidential information to the extent necessary to protect the attorney’s interests in a dispute that involves the conduct of the attorney.
(6) To obtain legal ethics advice
(7) disclosure to detect and resolve COI’s
(8) Required by Law or Court Order - 1.6(b)(6) permits a lawyer to reveal her client’s confidential information to the extent that she is required to do so by law or court order.
What must a lawyer do to protect the client’s confidential information? (what is their duty)
An attorney may reveal a client’s confidential information to the extent necessary to protect the attorney’s interests in a dispute that involves the conductof the attorney.
