Client-Lawyer Relationship - Privilege vs. Confidentiality Flashcards
MR 1.6 - Confidentiality of Information
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;
(4) to secure legal advice about the lawyer’s compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;
(6) to comply with other law or a court order; or
(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.
MR 1.6 (C) - Affirmative Duty to prevent disclosure
(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.
MR 1.6 - Comments
1) The confidentiality rule, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law.
2) A lawyer’s use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved.
Authorized Disclosure:
3) A lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation. In some situations, for example, a lawyer may be impliedly authorized to admit a fact that cannot properly be disputed or to make a disclosure that facilitates a satisfactory conclusion to a matter. Lawyers in a firm may, in the course of the firm’s practice, disclose to each other information relating to a client of the firm, unless the client has instructed that particular information be confined to specified lawyers.
Authorized Disclosure adverse to a client:
4) An overriding value of life and physical integrity, permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm. Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat.
5) § (b)(2) is a limited exception to the rule of confidentiality that permits the lawyer to reveal information to the extent necessary to enable affected persons or appropriate authorities to prevent the client from committing a crime or fraud… reasonably certain to result in substantial injury to the financial or property interests of another and in furtherance of which the client has used or is using the lawyer’s services.
6) If a crime or fraud has already occurred, the lawyer may disclose information relating to the representation to the extent necessary to enable the affected persons to prevent or mitigate reasonably certain losses or to attempt to recoup their losses.
Confidentiality
An ethically expansive duty providing for expansive protection of information relating to the representation of a client, which sets out limited exceptions to the lawyer’s affirmative duty not to disclose the information.
Note: Confidentiality does not mean that the information is protected by judicial attack. Only privileged information is offered legal protection.
Privilege
A privilege is a rule of evidence which permits a witness to refuse to provide otherwise relevant, probative evidence. The burden of proof that a privilege exists lays with the one seeking its protection.
Note:
This rule is one grounded in perpetuity and surviving the death of a client.
Moreover, a privilege only protects communication and discussions between client and attorney not the particular facts.
INFORMATION LEARNED FROM AN OUTSIDE SOURCE ABOUT THE CLIENT IS NOT PRIVILEGED. ONLY A COMMUNICATION WITH THE CLIENT IS PRIVILEGED
Establishing Privilege
(Element Test) Privilege requires:
(1) a communication (2) made between privileged persons (3) in confidence (4) for the purpose of obtaining or providing legal assistance for the client.
State v. Branham
If a client’s communication with his lawyer is not made in the professional capacity of the lawyer, no privilege attaches. As such, A statement made “to [a] lawyer merely as a personal friend” is not subject to the privilege.
As such, merely being a client’s attorney does not grant an all-encompassing attorney-client privilege.
Lynch v. Hamrick
The presence of a third party at a meeting between an attorney and client destroys the attorney-client privilege if the third party does not have a sufficient common legal interest in the subject matter of the meeting. Moreover, when a client waives attorney privilege they cannot later assert that the privilege was improperly breached.
The Testamentary Exception
implicit waiver where the disclosure by the lawyer would further the client’s testamentary intent, by allowing the attorney to speaking on the client’s capacity.
The Crime-Fraud Exception
Another exception to the privilege arises when a client consults a lawyer for the purpose of using the lawyer’s assistance to commit a crime or fraud, although only the communication in furtherance of such is non-privileged the rest retains its privilege.
Although, the party challenging the privilege has the burden of making a prima facie showing that the communications were in furtherance of an intended or present illegality, and that there is some relationship between the communications and the illegality.
The crime-fraud exception looks at the client’s intent and knowledge.
Waiver
A client is able to waive the privilege. The privilege is confidential but if action is taken inconsistent with maintaining the confidentiality will likely waive the privilege. See Lynch v. Hallmark
Exceptions to Confidentiality
An attorney can disclose confidential information if it is to prevent reasonably certain Bodily Harm or Injury.
An attorney can disclose confidential information if it is used to further a client’s fraud or crime through the lawyer’s service.
