Client Confidentiality Flashcards
The attorney-client privilege protects
only confidential communications
The ethical duty of confidentiality applies to
all information that relates to the representation of the client regardless of whether it is privileged, whether the client asked for it to be kept in confidence, and whether revealing it might harm or embarrass the client.
What is the definition of a “client” with respect to the attorney-client privilege?
the term “client” means a person or entity that seeks legal services from an attorney.
What does attorney client privilege cover?
The privilege covers preliminary communications leading up to an attorney-client relationship, even if no attorney-client relationship develops. It is not necessary that the client have entered into a written contract or paid for the attorney’s services.
What is considered a “communication” with respect to the attorney-client privilege?
Any information passed from the client or the client’s agent to the attorney or the attorney’s agent, and any information passed from the attorney or the attorney’s agent to the client or the client’s agent
What is required for a communication to be deemed “confidential”?
It must have been made by a means not intended to disclose the communicated information to outsiders, and the communicating person must reasonably believe that no outsider will hear the contents of the statement.
There is no requirement that the communicating person state that the communication is to be considered confidential. Furthermore, even if the communicating person does make such a request, the communication would not be confidential if knowingly made in the presence of outsiders, who are not present to help further the attorney-client relationship.
Under older law, the presence of an unsuspected eavesdropper was sometimes held to destroy the confidentiality of a communication, but under modern evidence law, that is no longer true and an eavesdropper can be prohibited from testifying about a confidential communication. Thus, it is not a requirement that no outsider hears the contents of the statement.
The attorney-client privilege exists for the benefit of
The client only. The client is the “holder” of the privilege and the client is the one who can claim or waive the privilege. Note that the attorney has a duty to invoke the privilege on the client’s behalf unless the client has waived the privilege.
When is “confidential” information no longer considered confidential?
When the information becomes generally known.
Unlike the attorney-client privilege, the presence of a nonprivileged third person does not necessarily destroy an attorney’s duty of confidentiality. Furthermore, confidential information remains confidential even if the information is actually known by a nonprivileged third person
An attorney may reveal a client’s confidential information
1)As is necessary to obtain legal ethics advice for the attorney
2)To the extent that the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm to the client or a third party
3) To the extent necessary to protect the attorney’s interests in a dispute that involves the conduct of the attorney
An attorney may not reveal a client’s confidential information
NO: To the extent that the lawyer reasonably believes necessary to prevent any financial injury to the client or a third party
Note that an attorney may reveal a client’s confidential information to the extent necessary to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial financial harm to someone (or to mitigate harm that has already occurred),if the client is using or has used the lawyer’s services in the matter, but this exception does not apply to actions that are legal, but may result in financial harm.
Some states, however, do require disclosure. 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.
In using this exception, the attorney should: (i) reveal only what is necessary, (ii) attempt to limit the disclosure to those who need to know it, and (iii) obtain protective orders or take other steps to minimize the risk of unnecessary harm to the client. An attorney may also disclose enough of the client’s confidential information as is necessary to obtain legal ethics advice for the attorney.
An attorney’s duty to preserve a client’s confidential information does not cease
Does not cease when the representation ends. It also does not cease upon the death of the client or if the client fires the attorney.
The attorney-client privilege prevents
Prevents a court, or other governmental tribunal, from using the twin powers of subpoena and contempt to compel the revelation of confidential communications between an attorney and a client.
In contrast, the ethical duty of confidentiality prohibits an attorney from voluntarily revealing information relating to the representation of a client—it applies in every context where the attorney-client privilege does not apply.
Which communications are covered by the attorney-client privilege when the client is a corporation?
Attorney-client privilege covers communications between the lawyer and a high-ranking corporate official.
Communications between the lawyer and other corporate employees will be privileged only if the following conditions are met:
(i) the employee communicates with the lawyer at the direction of the employee’s superior;
(ii) the employee knows that the purpose of the communication is to obtain legal advice for the corporation; and
(iii) the communication concerns a subject within the scope of the employee’s duties to act for the corporation.
The attorney-client privilege does NOT apply to:
Preexisting documents.
A client cannot protect a preexisting document from discovery simply by turning it over to the attorney. If the document would be discoverable in the client’s hands, it is equally discoverable in the attorney’s hands.
