Confidentiality

Question 1

A lawyer cannot share a clients confidential information unless…

Answer 1

1. to prevent substantial injury or death
2. to prevent fraud or crime (financial or otherwise)
3. to screen for conflicts
4. to comply with law/court order
5. implied authorization to carry out representation
6. client provides informed consent
7. to mitigate or rectify financial injury from a crime or fraud
8. ethical advice
9. to establish a defense or claim on lawyer’s behalf

Question 2

Does a lawyer have to disclose confidential client information if an exception applies?

Answer 2

No, exceptions allow permissive disclosures. A lawyer will not be subject to discipline for failing to disclose confidential information unless…
1. the law requires the lawyer to disclose this information
2. disclosure is necessary to avoid assisting the client in crime/fraud
2. compliance with duty of candor

Question 3

client interest and implied authorization

Answer 3

If information harms a client’s interest, an attorney is not impliedly authorized to disclose it–even in cases where they would have implied authorization if the information was not harmful.

Question 4

Clients with dimished capacity

Answer 4

If a lawyer reasonably believes that a client has dimished capacity, is at risk of harm (physical, financial, other), and cannot act in their own interest, then the laywer has implied authority to consult with others and reveal confidential information as is necessary to protect the client’s interest. However, the lawyer must first determine whether the person/entity’s may adversely impact the client’s interests.

Question 5

Can the duty of confidentiality be destroyed by a third party?

Answer 5

No, only the attorney-client privilege.