Confidentiality

Question 1

MR 1.6 (a)

Answer 1

(Confidentiality)
Confidentiality of Information
A lawyer can’t reveal information relating to representation of the client unless:
–client gives informed consent
–disclosure is impliedly authorized in order to carryout representation or
–disclosure is permitted pursuant to exceptions

Question 2

MR 1.6 (b)

Answer 2

(Confidentiality)
Exceptions:
May reveal to extent necessary to:
– Prevent a reasonably certain death or substantial bodily harm;
– Prevent the client from committing a crime or fraud, reasonably certain to result in substantial injury to financial interests or property of another and in furtherance of which the client has used or is using the lawyer services;
– Prevent, mitigate or rectify things described above
– Secure legal advice about the lawyers compliance with ethics rules
– Lawyers self-defense against client claims; or
– Comply with other law or court order

Question 3

Restatement 68

Answer 3

The attorney-client privilege maybe invoked with respect to:
– A communication
– Made between privilege persons
– In confidence
– For the purpose of obtaining/providing legal assistance for client

Question 4

Professional Duty of Confidentiality

Source

Answer 4

MR 1.6
Agency law
State law

Question 5

Professional Duty of Confidentiality

Scope

Answer 5

Information relating to representation
Examples:
– Client confessions/confidences
– Client secrets/ harmful and embarrassing

Question 6

Professional Duty of Confidentiality

Consequences

Answer 6

Bar discipline

Fiduciary claims

Question 7

Attorney-Client Privilege

Source

Answer 7

Evidence code

Question 8

Attorney-Client Privilege

Scope

Answer 8

Confidential attorney-client communications
Examples:
– Confidences

Question 9

Attorney-Client Privilege

Consequences

Answer 9

Evidence becomes admissible

Malpractice

Question 10

Work Product Doctrine

Source

Answer 10

Civil procedure rules

Question 11

Work Product Doctrine

Scope

Answer 11

Attorney materials in anticipation of litigation
Example:
– Memo re settlement strategy

Question 12

Work Product Doctrine

Consequences

Answer 12

Material becomes discoverable

Malpractice

Question 13

Attorney-Client Privilege

Crime Fraud Exception

Answer 13

(See US v Chen)
– Burden is on the plaintiff
– “Reasonable cause to believe that the attorney services were utilized in furtherance of an ongoing unlawful scheme”

Question 14

When Is Crime/Fraud Considered “Ongoing” for the Purposes of Confidentiality Exception?

Answer 14

Probably:
– Undetected tax fraud (Chen)
– Undetected financial fraud (Enron; OPM)

Question 15

May or Must Disclose

Answer 15

MR 1.2 (d), comment 10

MR 4.1 (b), comment 3

Question 16

MR 1.2 (d), Comment 10

Answer 16

A lawyer cannot continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers his criminal/fraudulent. Lawyer must WITHDRAW from representation of the client. In some cases, withdrawal loan maybe insufficient. It maybe necessary for lawyer to get notice of the fact of withdrawal and to disaffirm any opinion, document, affirmation, etc.

Question 17

MR 4.1 (b), Comment 3

Answer 17

MR 4.1 (b), comment 3:
If lawyer can avoid assisting in client’s crime– fried only by disclosing the information in the lawyer is REQUIRED to do so unless disclosure would violate MR 1.6.

Question 18

“Disaffirm”

Answer 18

Repudiate; declare void

Question 19

“Noisy” Withdrawal

Enron Examples

Answer 19

Probably required:
– VE lawyers representing Enron
– Authored disclosures legitimizing SPEs
Probably not required:
– K& E lawyers representing SPE
– No audience with defrauded investors

Question 20

Reporting Out: MR 1.13

Answer 20

Context:
– Representing an organization (business entity, government, etc.)
Goal:
– Prevent harm to organization and its constituents
Permissive disclosure, however noisy withdrawal comments may make mandatory

Question 21

Reporting Out: MR 1.6

Answer 21

Context:
– Generally applicable rule
Goal:
– Prevent harm to public
Permissive disclosure, however noisy withdrawal comments may make mandatory

Question 22

Reporting Out: SOX

Answer 22

Context:
– Practicing before the SEC
Goal:
– Prevent harm to issuer or investors
– Note: more like MR 1.13 than 1.6
Permissive disclosure

Question 23

Confidentiality:

Retaliatory Discharge

Answer 23

(ex. Balla)
– In-house lawyers using general employment law (e.g., retaliatory discharge)
– Case strange because Illinois disclosure is mandatory; other cases will cite ACP or PDC problems
– In California, General Dynamics says possible but ACP is impediment to proving case

Question 24

Upjohn Takeaways

Answer 24

Internal investigation: questionnaires and lawyer interviews are subpoenaed by the IRS
– Court rejects”control group” test
– Materials were covered by ACP
Factors that mattered:
–Communications with lawyers, not just copying to lawyers
– For purpose of securing legal advice for the corporation

Question 25

Professional Duty of Confidentiality:

Key Exceptions

Answer 25

– Implied or express consent
– Bodily harm per MR 1.6(b)(1)
– Crime fraud per MR 1.6(b)(2) & (3)
– Advice re-compliance with rules (b)(4)
– Self defense (b)(5)

Question 26

Attorney-Client Privilege:

Key Exceptions

Answer 26

– Crime fraud (Chen)

Question 27

Work Product Doctrine:

Key Exceptions

Answer 27

– Crime fraud (Chen)