Confidentiality

Question 1

Rule 1.6

A lawyer shall not reveal info related to the representation of a client unless:

(three situations)

Answer 1

1. The client gives informed consent
2. The disclosure is impliedly authorized
3. It is allowed by 1.6(b) exceptions

Question 2

Rule 1.6 (b)

In what seven situations may a lawyer reveal info relating to the representation of a client to the extent the lawyer reasonable believes necessary?

Answer 2

1. To prevent reasonably certain death or substantial bodily harm
2. To prevent the client from committing fraud or crime
3. To prevent, mitigate, or rectify substantial injury to the financial interests or property of another
4. To secure legal advice about the lawyer’s compliance with the Rules
5. To establish a defense on behalf of the lawyer in a dispute between the lawyer and his client, or based on the lawyer’s conduct, or to respond to allegations
6. To comply with other law or court order
7. To detect and resolve conflicts of interest from change in employment or change in ownership of a firm

Question 3

Rule 1.6

When does the client-lawyer confidentiality rule apply?

Answer 3

In situations other than those where evidence is sought from the lawyer through the compulsion of law.

Attorney client privelege and the work-product doctrine apply in judicial proceedings

Question 4

Rule 1.6

Can lawyers in a frim disclose to each other information relating to a client of the firm?

Answer 4

Yes, unless the client has instructed that particular info be confined to specified lawyers only.

Question 5

Rule 1.6

If your client is a lawyer, and tells you of misconduct that he did in violation of the Rules, do you have a duty to report him to the Office of Attorney Council?

Answer 5

No, not if the info is protected by 1.6

Question 6

1. 6(b) Exceptions
2. 6(b)(2): Prevent crime or fraud, When can the lawyer reveal info under this exception?

Answer 6

When it is necessary to prevent the client from committing a crime or fraud that:

(1) is reasonably certain to result in substantial injury to the financial or property interests of another

and

(2) in furtherance of which the client has used or is using the lawyers services.

Question 7

Rule 1.6(b)(2)

Can the client prevent the lawyer from disclosing the confidential info to prevent the client from committing a crime or fraud?

Answer 7

Yes, the client can prevent the disclosure by refraining from the wrongful conduct

Question 8

Rule 1.6(b)(3)

Does this apply when a person who has already committed a crime or fraud then employs a lawyer from representation concerning that offense?

Answer 8

No it does not apply if the crime has been committed

Question 9

Rule 1.6(b)(4)

Does a lawyer’s confidentiality obligations stop him from getting confidential legal advice about the lawyer’s personal responsibility to comply with the rules?

Answer 9

No, the lawyer is allwed to get legal advice. Usually impliedly authorized to disclose info in order to carry out the representation.

Question 10

Rule 1.6(b)(4)

Can a lawyer disclose info to get legal advice even when the disclosure is not impliedly authorized?

Answer 10

Yes 1.6(b)(4) permits disclosure because of the importance of a lawyer’s compliance with the Rules

Question 11

Rule 1.6(b)(5)

Does a lawyer have to wait for an action or proceeding to start before disclosing the info necessary to establish a defense?

Answer 11

No, the defense can be established by responding directly to a thrid party who made the assertion

Question 12

Rule 1.6(b)

Does a lawyer’s decision not to disclose info as permitted by 1.6(b) violate this rule?

Answer 12

No, but disclosure may be required by other rules

Some rules require disclosure only if such disclosure would be permitteed by 1.6(b)

Rules:

• Rule 1.2(d): counciling client on illegal action
• Rule 4.1(b): cant fail to disclose material fact if necessary to aviod crime
• Rule 8.1: Bar admission and discipline
• Rule 8.3: Reporting misconduct

Rule 3.3, on the other hand, requires disclosure regardless of whether it is permitted by this rule

Question 13

Rule 1.6(c)

Is the unauthorized access to, or unauthorized disclosure of, confidential information a violation of 1.6(c) if the lawyer has made reasonable efforts to prevent the access or disclosure?

Answer 13

No, it is not a violation if the lawyer has made reasonable efforts

Question 14

Rule 1.6(c)

What factors are considered in determining the reasonableness of the lawyer’s efforts?

Answer 14

Factors include, but are not limited to:

The sensitivity of the info
The lekelihood of disclosure if additional safeguards are not employed
The cost of employing additional safeguards
The difficulty of implementing the safeguards, and
The extent to which the safeguards have an adverse effect on the lawyer’s ability to represent clients (like making a piece of software excessively difficult to use)

Question 15

Rule 1.6

Can a client require a lawyer to implement special security measure to protect confidential information beyond what is required by the Rules?

Answer 15

Yes

Question 16

Rule 1.6

Lawyer is prohibited from revealing information that could reasonably lead to…

Answer 16

That could reasonably lead to the discovery of such info by a thrid person, but hypotheticals are OK

Question 17

Rule 1.6

When transmitting a communication that includes confidential info, what must the lawyer do?

Answer 17

Lawyer must take reasonable precautions to prevent the info from falling into unintended hands

Lawyer must use a method of communication that provides a “reasonable expectation of privacy”

Question 18

Work product is protected info, what is work product?

Answer 18

Notes and memoranda that the lawyer creates relating to the matter

Question 19

Rule 1.6

Does the confidentiality continue after the client-lawyer relationship has terminated?

Answer 19

Yes See Rule 1.9 for the prohibition against using such info to the disadvantage of a former client