Confidentiality Flashcards
What is the general rule of the ethical duty of confidentiality?
A lawyer must not reveal any information relating to the representation of the client.
A lawyer may, however, reveal such information if the client gives informed consent, or if the disclosure is impliedly authorized to carry out the representation.
What are the three ways that attorney-client privilege differs from the duty of confidentiality?
- Compulsion vs. gossip: Attorney-client privative is an exclusionary rule of evidence law. prevents court from compelling the revelation of confidential communications between atty and client. in contrast. the duty of confidentiality prohibits an atty from voluntarily revealing info relating to the representation of a client.
- Kinds of info covered: Confidentiality covers more information than atty-client privilege. The attorney-client privilege protects only confidential communications between the attorney and client (or the agents of either of them). The ethical duty, in contrast, covers not only confidential communications, but also any other information that the attorney obtains relating to the representation of the client, no matter what the source of that information.
- Disclosure v. Use: The attorney-client privilege concerns only the disclosure of information. In contrast, the ethical duty of confidentiality concerns both the disclosure and use of informa- tion.
What is the bassi attorney-client privilege rule?
The attorney-client privilege prohibits a court or other governmental tribunal from compelling the revelation of confidential communications between an attorney (or an attorney’s agent) and a client (or a client’s agent) if the subject of the communication concerns the professional relationship between the attorney and the client.
How does attorney-client privilege work when the client is a corporation?
The privilege covers communications between the lawyer and a high-ranking corporate official.
It also covers communications between the lawyer and another corporate employee if the following conditions are met:
1. The employee communicates with the lawyer at the direction of the employee’s superior;
2. The employee knows that the purpose of the communication is to obtain legal advice for the corporation; and
3. The communication concerns a subject within the scope of the employ- ee’s duties to act for the corporation.
What does attorney-client privilege not cover?
The mechanical details of the relationship such as the identity of the client, the fee arrangement, and the fact that the atty is acting for the client.
However, these details can be protected by the privilege if revealing them is tantamount to revealing a privileged communication.
Does atoners-client privilege cover preexisting document or thing?
No. If the document or thing would be discoverable in the client’s hands, it is equally discoverable in the attorney’s hands. Passing a preexisting document to an attorney does not make it privileged.
Must a communication be confidential for attorney-client privilege to apply?
Yes, 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.
if a third party was present then not privileged. eavesdroppers don’t count because that isn’t the clients fault.
Does the attorney or the client hold the privilege?
the client is the holder of the privilege.
who can waive the privilege?
the client
How is privilege waived?
A waiver consists of a failure to claim the privilege when there is an opportunity to do so, or the intentional revelation of a significant portion of the privileged communication.
what happens to the privilege if the client puts legal services at issue?
The client may also waive the privilege by asserting a claim or defense that puts the legal services at issue in the case. For example, where a defen- dant appeals a criminal conviction on the basis of ineffective assistance of counsel at trial, the communications between the defendant and the trial attorney are not privileged.
Does the lawyer have a duty to invoke the attorney clients privilege on a clients behalf, and if so, how/when?
If the client has not waived the privilege, and if someone tries to obtain privi- leged information when the client is not present, the lawyer must claim the privilege on the client’s behalf.
How long does attorney-client privilege last?
Indefinitely. Termination of the relationship, even for cause, does not terminate the privilege. The privilege even survives the death of the client.
What are the four exceptions to attorney-client privilege?
- The privilege does not apply if the client seeks the attorney’s services to engage in or assist a future crime or fraud.
- The privilege does not apply to a communication that is relevant to an issue of breach (by either the attorney or the client) of the duties arising out of the attorney-client relationship.
- The privilege does not apply in civil litigation between two persons who were formerly the joint clients of the attorney.
- The privilege does not apply in a variety of situations in which the attorney can furnish evidence about the competency or intention of a client who has attempted to dispose of property by will or inter vivos transfer.
What is the work product doctrine?
material prepared by a lawyer for litigation or in anticipation of litiga-
tion is immune from discovery or other compelled disclosure unless the opposition shows a substantial need for the material and an inability to gather the material without undue hardship.
Are a lawyers mental impressions and opinions discoverable if there is a substantial need and an inability to gather that material without undue hardship?
A lawyer’s mental impressions or opinions are immune from discovery or compelled disclosure regardless of the opposition’s need unless the immunity has been waived.
When does the duty of confidentiality apply?
The ethical duty of confidentiality applies in every context in which the attorney-client privilege does not apply.
The ethical duty also covers a broader range of information than the privilege.
Finally, the ethical duty concerns not only the disclosure of information, but also the use of information to the disadvantage of a client, a prospective client, or a former client.
Is the duty of confidentiality destroyed by the presence of a third party?
No. Confidential information remains confidential even if it is known to others, unless the information becomes generally known.
Exceptions to the duty of confidentiality
- Clients informed consent
- Implied authority:
- To prevent death of substantial bodily harm
- To prevent or mitigate substantial financial harm
- dispute concerning arty’s conduct
- to obtain legal ethics advice.
- to detect and resolve conflicts of interest
- required by law or court order.
Are these exceptions mandatory or permissive?
They are permissive. an atty will not be disciplined for failing to disclose in these circumstances.
Can an attorney disclose confidential information if the client gives informed consent?
Yes. An attorney may reveal or use confidential information if the client gives informed consent. [ABA Model Rule 1.6(a)] Remember that “informed consent” means that the client agrees to a proposed course of action after the lawyer has adequately explained the risks and reasonable alternatives
Can an attorney disclose confidential information if there is implied authority to do so?
Yes. An attorney has implied authority from the client to use or disclose confidential information when appropriate to carry out the representation—unless, of course, the client gives specific instructions to the contrary.
Can an attorney disclose confidential information to prevent death of substantial bodily harm?
ABA Model Rule 1.6(b)(1) permits a lawyer to reveal the client’s confidential infor- mation to the extent that the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm. Note that the exception applies to death or bodily harm whatever the cause; it need not be caused by the client, and the cause need not be a criminal act. Notice also that the death or bodily harm need not be imminent—it need only be reasonably certain. Finally, notice that the exception gives the lawyer discretion to disclose the confidential information; it does not require disclosure. Some states, however, do require disclosure.
Can an attorney disclose confidential information to prevent or mitigate substantial financial harm?
Yes.
A lawyer may reveal the client’s confidential information to the extent neces- sary to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial financial harm to someone, if the client is using or has used the lawyer’s services in the matter. The same is true if the client has already acted, and the lawyer’s disclosure can prevent or mitigate the conse- quent financial harm
