Confidentiality Flashcards
What is the Analytical Approach for Confidentiality Problems?
Step 1: Are all three elements of Attorney-Client Privilege satisfied?
Step 2: Are any of the five exceptions to Attorney-Client Privilege applicable?
Step 3: Are the two elements that give rise to the ethical Duty of Confidentiality present?
Step 4: Are any of the eight exceptions to the Duty of Confidentiality applicable?
What are the three elements of Attorney-Client Privilege?
Element 1: Is the Government (e.g., a prosecutor, a judge, etc.) attempting to compel disclosure of communication between a lawyer and their client?
Element 2: Was the communication made in confidence?
Element 3: Was the communication made for the purpose of obtaining or rendering legal services?
What are the five exceptions to Attorney-Client Privilege?
Exception 1: Lack of confidentiality at time of communication.
Exception 2: Communication for purposes other than obtaining or rendering legal services.
Exception 3: Waiver of privilege by voluntary disclosures.
Exception 4: Communication in furtherance of a crime or fraud
Exception 5: Attorney’s services at issue.
What are the two elements required for the Ethical Duty of Confidentiality to arise?
Element 1: Has the lawyer acquired information in the course of representing the client?
Element 2: Does the information relate to the representation of the client?
What are the nine exceptions to the Ethical Duty of Confidentiality?
Exception 1: The client gives informed consent for disclosure (Rule 1.6(a)(1)).
Exception 2: The disclosure is “impliedly authorized” in order to carry out the representation (Rule 1.6(a)(2)).
Exception 3: The disclosure is necessary to avert death or substantial body harm (Rule 1.6(b)(1)).
Exception 4: The disclosure is necessary to prevent future fraud or crime that is reasonably certain to result in substantial financial or proprietary harm, if the client has used the attorney’s services to further this crime or fraud (Rule 1.6(b)(2)).
Exception 5: The disclosure is necessary to mitigate effect of such a fraud or crime that has already occurred (Rule 1.6(b)(3)).
Exception 6: The disclosure is necessary for the lawyer to obtain legal advice about ethical duties (Rule 1.6(b)(4)).
Exception 7: The disclosure is because the lawyer’s services are at issue (Rule 1.6(b)(6)).
Exception 8: The disclosure is required by a court or by law (Rule 1.6(b)(6)).
Exception 9: Disclosure is necessary to screen for conflicts incidental to firm switching (Rule 1.6(b)(7)).
What are four differences between Attorney-Client Privilege and the Ethical Duty of Confidentiality?
(1) Attorney-Client Privilege is an evidentiary rule meaning information gained in violation of this rule is excluded from the evidence; the Ethical Duty of Confidentiality is an ethical rule meaning it is enforced by disciplinary proceedings.
(2) Attorney-Client Privilege applies to compelled disclosure; the Ethical Duty of Confidentiality applies to voluntary disclosures.
(3) Attorney-Client Privilege requires confidential communication between a client and his attorney; the Ethical Duty of Confidentiality applies to all information related that is ever acquired and relates to the representation.
(4) Attorney-Client Privilege is much easier to defeat than the Ethical Duty of Confidentiality.
What are three important similarities between Attorney-Client Privilege and the Ethical Duty of Confidentiality?
(1) Both Attorney Client Privilege and the Ethical Duty of Confidentiality apply to initial consultations.
(2) Both Attorney Client Privilege and the Ethical Duty of Confidentiality continue to apply after the conclusion of the representation.
(3) Both Attorney Client Privilege and the Ethical Duty of Confidentiality are held by clients, not attorneys.
What are three important things to know about the use of Generative AI with respect to the Ethical Duty of Confidentiality?
(1) There is a risk of disclosure with self-learning AI.
(2) Clients should provide their informed consent if there are any risks relating to confidentiality arising from the use of Generative AI.
