Client Confidentiality

Question 1

What is the general rule for client confidentiality?

Answer 1

• A lawyer must not reveal any information relating to the representation of a client unless:

        1. The client gives informed consent, or
  
        2. Disclosure is impliedly authorized to carry out the representation.

• The ethical duty applies in all contexts, not just courtrooms.
• Governed by ABA Model Rule 1.6.

**Example: A lawyer may share details with staff to help prepare a filing, but not with friends at a party.

Question 2

Why is the ethical duty of confidentiality important?

Answer 2

• Encourages clients to be honest and candid.
• Promotes early legal advice.
• Allows lawyers to obtain full and accurate info.
• Helps lawyers fulfill their duties effectively.

Example: A client reveals a sensitive fact knowing the lawyer is bound to keep it secret.

Question 3

How does the ethical duty differ from the attorney-client privilege?

Answer 3

• Confidentiality: Broad ethical rule; applies everywhere.
• Privilege: Narrow legal rule; applies only in court/legal proceedings to stop forced disclosure.

Example: A lawyer can refuse to answer in court due to privilege, and must also keep info secret in casual conversation due to confidentiality.

Question 4

What types of information are protected by confidentiality vs. privilege?

Answer 4

• Privilege: Only confidential communications between attorney and client.
• Confidentiality: All information related to representation, from any source, even public or third-party info.

Example: Info a lawyer learns about the client from a news article is confidential under Rule 1.6 but not privileged.

Question 6

Does the duty cover both disclosure and use?

Answer 6

• Confidentiality: Covers both disclosure and use of info to a client’s disadvantage.
• Privilege: Covers only disclosure during legal processes.

Example: A lawyer using private client info to help another client may be disciplined—even without disclosing it.

Question 7

Who owns the attorney-client privilege?

Answer 7

• The client holds the privilege.
• Only the client can waive it—by sharing the info or not asserting it when required.

Example: If a client emails a friend details of their legal advice, they may waive the privilege.

Question 8

How does the privilege work with corporate clients?

Answer 8

Applies to:

    1. Communications with top officials.

    2. Other employees if:

            * They are directed to talk to the lawyer.

            * They know it's for legal advice.

            * The topic is within their job duties.

Example: An HR employee reporting harassment to a company lawyer can fall under privilege if those conditions are met.

Question 9

Are preexisting documents or objects privileged?

Answer 9

No. The privilege protects communications—not physical evidence or documents created before the legal discussion.

Example: A gun or contract already in existence is not protected just because the lawyer now possesses it.

Question 10

What makes a communication “confidential”?

Answer 10

• The client must reasonably intend it to remain private.
• Must occur in a private setting.
• Third parties generally destroy confidentiality unless present to help (e.g., translators, assistants).

Example: Speaking in a crowded hallway where others overhear removes privilege.

Question 11

How long does the privilege last?

Answer 11

• It lasts indefinitely, even after the attorney-client relationship ends.
• It survives after the client’s death, with limited exceptions (e.g., property disposition).

Example: A lawyer cannot reveal a deceased client’s secrets, even years later

Question 12

What are exceptions to attorney-client privilege?

Answer 12

1. Future crime/fraud.
2. Disputes between client and lawyer.
3. Disputes between joint clients.
4. Client’s intent in will/property cases.

Example: A lawyer can testify if the client sues them for malpractice or if joint clients later sue each other.

Question 13

What is “work product immunity”?

Answer 13

• Protects materials prepared for litigation.
• Can be overcome only if the opposing party shows:

           1. Substantial need, and
           2. No other way to get the info.

• A lawyer’s mental impressions are almost always protected.

Example: Notes made by a lawyer about trial strategy are not discoverable.

Question 14

What are the exceptions to the ethical duty of confidentiality?

Answer 14

1. Client’s informed consent.
2. Implied authorization to carry out representation.
3. To prevent reasonably certain death or bodily harm.
4. To prevent/mitigate financial harm from crime/fraud involving lawyer’s services.
5. To defend against legal claims.
6. To obtain ethics advice.
7. To resolve conflicts when changing firms.
8. When required by law or court order.

Example: A lawyer may reveal secrets to protect themselves in a malpractice suit.

Question 15

Can a lawyer discuss client info to get advice from another lawyer?

Answer 15

• Yes, but only what’s necessary.
• Info must be shared in hypotheticals to avoid identifying the client.

Example: Discussing a “client with an unusual contract clause” without naming them is acceptable.

Question 16

How must lawyers protect client information?

Answer 16

• Must take reasonable steps to prevent:

       1. Unauthorized access,
  
       2. Inadvertent disclosure,
  
       3. Employee leaks.

Example: A lawyer shouldn’t leave open files in a shared workspace.

Question 17

What if a lawyer shares office space with another lawyer?

Answer 17

• Must take steps to maintain confidentiality:

       1. Separate reception areas.
  
       2. No leaving files out.
  
      3. Use privacy screens.
  
      4. Train staff.

Example: If lawyers casually consult each other in shared spaces, they must use extreme care not to reveal confidential info.