Client Confidentiality

Question 1

The attorney-client privilege applies in

Answer 1

judicial and other proceedings in which a lawyer may be called as a witness or is otherwise required to produce evidence concerning a client.

Question 2

what is the general rule regarding attorney client privilege?

Answer 2

The general rule is that where matters are communicated by a client to his attorney in professional confidence, the attorney may not at any time afterwards be called upon or permitted to disclose the communications in testimony.

Question 3

T or F The communication must be intended to be confidential. If the communication was knowingly made in the presence of third parties, it is not covered by the attorney client privilege

Answer 3

True

Question 4

if the communication was not intended to be disclosed to third persons other than those to whom the disclosure is made, or those reasonably necessary for the transmission of the communication is it still confidential?

Answer 4

yes

Question 5

T or F The attorney client privilege extends to information obtained by a lawyer from witnesses or third parties unless those witnesses or third parties are representatives of the client. However, such communications are still protected from pretrial discovery.

Answer 5

False it does not

Question 6

T of F Consultation of a lawyer In the role of business adviser ,friend ,or confidant, or for some purpose other than legal advice, is not within the privilege. Even if the lawyer is consulted in his professional capacity, statements made to him that are not related to legal advice or legal services are not protected by the privilege.

Answer 6

true

Question 7

T or F Preexisting written documents, such as contracts, leases, or intercompany memos, do not become privileged merely because they are handed over to a lawyer.

Answer 7

True

Question 8

How long does the attorney client privilege last?

Answer 8

The privilege continues indefinitely (unless waived by the client), even after the lawyer-client relationship is terminated or after the client’s death.

Question 9

What are the exceptions to the attorney client privilege?

Answer 9

When the purpose of the communication is to plan or perpetrate a future crime or fraudulent act, the privilege will not arise. However, communications regarding past crimes or frauds made for the purpose of defending a client are within the privilege.
„
The executor, administrator, or personal representative possesses the consent and waiver rights formerly vested in the client.

„ The privilege does not apply when the lawyer authenticates a document, because the lawyer is acting more like a witness than a lawyer, and the client is presumed to have waived any privilege.
„
When more than one client consults with a lawyer regarding a common legal problem, statements made among the clients and lawyer are privileged, except where a later dispute arises between the clients. In that case, the communications are no longer privileged, and the lawyer is permitted to disclose the communications.

Question 10

What does the work product doctrine generally protect? What is the exception?

Answer 10

The work product doctrine generally protects from discovery any records of statements or interviews, and other tangible items prepared in anticipation of litigation.
„ Materials prepared in anticipation of litigation or for trial may be obtained only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable to obtain their substantial equivalent without undue hardship.

Question 11

Even if disclosure of work product is ordered, what is not discoverable?

Answer 11

Even if disclosure of work product is ordered, documents reflecting the lawyer’s mental impressions, conclusions, opinions, or legal theories are not discoverable without some exceptional circumstance requiring their production.

Question 12

what does the duty of confidentiality versus the attorney client privilege prevent?

Answer 12

duty of confidentiality prevents Lawyer from voluntarily revealing or misusing information related to the representation of a client while the attorney client privilege prevents Lawyer from forced disclosure of privileged information

Question 13

what kinds of confidential info are protected under the duty of confidentiality as opposed to the confidential communications covered under the attorney client privilege?

Answer 13

Confidential communications protected by the attorney-client privilege plus all information relating to the representation of a client from any source, including information from parties and information acquired before the lawyer was retained are protected under duty of confidentiality while

under the attorney client privilege Confidential communications between the client and the lawyer made for the purpose of obtaining legal advice or services are protected

Question 14

Where does the duty of confidential apply? where does the attorney client privilege apply?

Answer 14

duty of confidentiality applies Everywhere where the attorney-client privilege does not apply.

Attorney client privilege applies In a judicial or other proceeding where a lawyer is called as a witness or otherwise required to produce evidence concerning a client

Question 15

Duty of confidentiality is an Affirmative duty on the attorney not to reveal information relating to the representation of a client unless

Answer 15

the client gives informed consent or the disclosure is impliedly authorized in order to carry out the representation

Question 16

T of F Client can assert or waive the attorney client privilege directly, and lawyer can assert or waive as agent of client.

Answer 16

True

Question 17

The duty of confidentiality Continues indefinitely even after the lawyer-client relationship is terminated and survives the death of the client, unless

Answer 17

an exception to the rule applies

Question 18

The attorney client privilege continues indefinitely unless

Answer 18

Continues indefinitely, unless waived by the client, even after the lawyer-client relationship is terminated or after the client’s death

Question 19

A lawyer cannot reveal information relating to the representation of a client unless the client gives informed consent or the disclosure is impliedly authorized in order to carry out the representation. This obligation includes disclosures that

Answer 19

do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person.

Question 20

The duty of confidentiality differs from the attorney-client privilege in that it applies not only to matters communicated in confidence by the client, but also to

Answer 20

o all information relating to the representation from any source. This also includes information acquired before the lawyer was retained that relates to the representation.

Question 21

T or F The duty of confidentiality survives the lawyer-client relationship. Unless the former client consents after consultation, a lawyer who has formerly represented a client, or whose present or former firm has formerly represented a client, must not thereafter use or reveal confidential information relating to the representation of the former client, except as the Rules would permit or require with respect to a client

Answer 21

True

Question 22

The fact that a lawyer has once served a client does not preclude the lawyer from using what kind of information?

Answer 22

rom using generally known information about that client when later representing another client. Thus, regardless of how the information became generally known, it is no longer protected by the attorney-client privilege or the duty of confidentiality

Question 23

A lawyer may also reveal matters to opposing counsel and to the court if those revelations will further

Answer 23

the client’s case (e.g., to admit a fact that cannot properly be disputed or to make a disclosure that facilitates a satisfactory conclusion to a matter).

Question 24

Moreover, a lawyer may communicate confidential information to other lawyers in the firm, unless

Answer 24

the client specifically instructs otherwise.

Question 25

Despite the general duty of confidentiality, there are certain instances where a lawyer may disclose information relating to the representation of a client, without the client’s informed consent or implied authorization. Disclosure is permitted—but not required—in the following situations:

Answer 25

(1) to prevent reasonably certain death or substantial bodily harm;
(2) when a client used or is using the lawyer’s services in furtherance of a crime or fraud, a lawyer may disclose information to prevent, mitigate, or rectify substantial injury to the financial interests or property of another;
(3) to obtain legal advice about the lawyer’s compliance with the Rules;
(4) to detect and resolve conflicts of interest that arise from a lawyer’s change of employment or from changes in the composition of a lawyer’s firm but only if disclosing the information would not prejudice the client or compromise the attorney-client privilege;
(5) to protect the lawyer’s ability to assert claims and defenses on his own behalf; or
(6) to comply with the law or a court order.

Question 26

T or F A lawyer must also make reasonable efforts to prevent the inadvertent or unauthorized disclosure
of, or unauthorized access to, information relating to the representation of a client. This provision requires a lawyer to act competently to safeguard information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons who are subject to the lawyer’s supervision.

Answer 26

True

Question 27

The inadvertent disclosure of information relating to the representation of a client does not constitute a violation of this Rule if

Answer 27

if the lawyer has made reasonable efforts to prevent the access or disclosure.

Question 28

A lawyer must not represent a client if a concurrent conflict exists between two clients, a client and a third party, or a client and the lawyer’s own interest.

A concurrent conflict exists if?

Answer 28

A concurrent conflict exists if:

(1) the representation of one client will be directly adverse to the representation of another; or
(2) there is a significant risk that the representation of one client will be materially limited by the lawyer’s responsibilities to another client or the lawyer’s own interest.

Question 29

If a concurrent conflict is found, a lawyer can still represent the client if:

Answer 29

(1) the lawyer reasonably believes he will be able to provide competent and diligent representation
to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve one client asserting a claim against another client in the same litigation; and
(4) each client gives informed consent in writing.

Question 30

Why should a lawyer decline to represent a co-defendant in a criminal case?

Answer 30

Because of the grave potential for a conflict when a lawyer represents multiple defendants in a criminal case, a lawyer should ordinarily decline to represent more than one co-defendant.

Question 31

Common representation of persons having similar interests is proper if the lawyer:

Answer 31

if the lawyer reasonably believes that the risk of adverse effect is minimal, and all persons have given their informed consent to the multiple representations.

Question 32

Where a lawyer represents two or more clients, the lawyer may not make an aggregate settlement
of the claims of or against the clients or, in a criminal case, make an aggregated agreement as to guilty or nolo contendere pleas, unless

Answer 32

unless each client consents in writing after consultation. The lawyer’s disclosure to the clients must include the existence and nature of all claims or pleas involved, and the participation of each person in the settlement.

Question 33

A lawyer must not use information relating to the representation of a client to the disadvantage of that client unless the lawyer

Answer 33

obtains the client’s informed consent or it is otherwise permitted or required by the Rules.

Question 34

T or F Gifts to Lawyers: A lawyer shall not solicit any substantial gift from a client. This Rule does not prohibit a lawyer from accepting an unsolicited gift from a client if the transaction meets general standards of fairness.

Answer 34

True

Question 35

A lawyer cannot prepare the instrument giving himself or his relative a substantial gift from a client, including a testamentary gift, unless

Answer 35

the lawyer is related to the client

Question 36

A lawyer may not obtain or negotiate literary or media rights to
a portrayal or account regarding a pending representation prior to the conclusion of the representation. But it is permissible to obtain

Answer 36

However, it is permissible to obtain as a fee a percentage of independent literary material that is the subject of the representation.

Question 37

Before any settlement offer or plea bargain is made or accepted on behalf of multiple clients, the lawyer must

Answer 37

inform each client about all the material terms of the settlement, including what the other clients will receive or pay if the settlement or plea offer is accepted.

Question 38

A lawyer may not have sexual relations with a client unless

Answer 38

unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.

Question 39

A lawyer who formerly represented a client shall not represent a current client in the same or a substantially related matter if

Answer 39

if the current client’s interests are materially adverse to the interests of the former client, and unless the client gives informed consent

Question 40

T or F A lawyer shall not knowingly represent a current client in the same or a substantially related matter in which the lawyer’s previous firm represented a client whose interests are materially adverse to the current client and about whom the lawyer had acquired information material to the matter protected by Rule 1.6 and Rule 1.9(c), unless the former client gives informed consent.

Answer 40

True

Question 41

A lawyer who has formerly represented a client in a matter, or whose present or former firm has formerly represented a client in a matter, may not thereafter:

Answer 41

(1) use information relating to the representation to the disadvantage of the former client except as the Rules permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as the Rules permit or require with respect to a client.

Question 42

A lawyer cannot represent a private party against a government agency in a matter in which the lawyer participated personally and substantially while working for the government, unless

Answer 42

unless the government agency gives its written consent to the representation.

Question 43

Who is a perspective client?

Who is not a perspective client
?

Answer 43

A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.

A person who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of form- ing a client-lawyer relationship, is not a prospective client.

Question 44

T or F Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client may not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client.

Answer 44

True

Question 45

A lawyer may not represent a client with interests adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except if:

Answer 45

(1) both the affected client and the prospective client have given written informed consent; or
(2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client,

(3) the disqualified lawyer is timely screened from any participation in
the matter and is apportioned no part of the fee, and

(4) written notice is promptly given to the prospective client.

Question 46

In order to avoid acquiring disqualifying information from a prospective client, a lawyer considering whether to undertake a new matter should limit the initial consultation to only such information as

Answer 46

as reasonably appears necessary for that purpose.

Question 47

T or F The lawyer may also condition a consultation with a prospective client on the person’s informed consent that no information disclosed during the consulta- tion will prohibit the lawyer from representing a different client in the matter.

Answer 47

True