Client Confidentiality Flashcards
Attorney-Client Privilege
Rule & Elements
Attorney-client privilege is an exclusionary rule of evidence that prevents the Court from compelling confidential communications between an attorney and their client.
Only applies to:
* confidential communications between a lawyer and their client for the purpose of obtaining legal assistance for the client
* disclosures in proceedings
Includes support staff for the lawyer
Does not cover pre-existing documents/records
Duty of Confidentiality
Rule & Elements
The ethical duty of confidentiality prohibits a lawyer from voluntarily revealing information relating to the representation of a client. The lawyer must make reasonable efforts to prevent disclosure or access to such information.
Applies to:
* all information relating to representation
* disclosures in any setting
Subject to discipline
Presence of a third party does not stop the duty
What communication is confidential?
A communication is confidential if there is a reasonable belief outsiders will not learn the contents, but eavesdropper information still applies.
Remains confidential if it is known to others unless it becomes generally known
Who holds the right of privilege and how may it be waived?
- The client holds the right.
- Attorney, agent, or client may waive by failing to object to disclosure or disclosing to a third party.
Exceptions to Privilege
within evidence law
- Services sought to aid in future crime or fraud
- Self-protection for the lawyer in an issue of breach
- Civil litigation between former joint clients
- Evidence of competency or intent of a deceased client
Work Product Doctrine
Anything made in anticipation of litigation generally isn’t discoverable unless there is a substantial need and undue hardship in obtaining the information.
Mental impressions or opinions of a lawyer are immune from discovery
Exceptions to Confidentiality
Allowing the disclosure and/or use of such information
- Informed consent from client
- Implied authority to lawyer if it is in the client’s interests (in order to carry out representation)
- Prevent death or substantial bodily harm
- Prevent/rectify substantial financial injury if services used in furtherance
- Self-protection in dispute concerning lawyer’s conduct
- Obtain legal ethics advice
- Detect/resolve conflicts of interest (after substantive discussion re new relationship of firm)
- Comply with court order or law (after asserting grounds to not disclose)
- Duty of candor to a tribunal
In getting advice or resolving conflicts of interest, still do not disclose client’s identity or specifics of case (use hypothetical)
