Confidentiality Flashcards
MR 1.6 (a)
(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
MR 1.6 (b)
(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
Restatement 68
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
Professional Duty of Confidentiality
Source
MR 1.6
Agency law
State law
Professional Duty of Confidentiality
Scope
Information relating to representation
Examples:
– Client confessions/confidences
– Client secrets/ harmful and embarrassing
Professional Duty of Confidentiality
Consequences
Bar discipline
Fiduciary claims
Attorney-Client Privilege
Source
Evidence code
Attorney-Client Privilege
Scope
Confidential attorney-client communications
Examples:
– Confidences
Attorney-Client Privilege
Consequences
Evidence becomes admissible
Malpractice
Work Product Doctrine
Source
Civil procedure rules
Work Product Doctrine
Scope
Attorney materials in anticipation of litigation
Example:
– Memo re settlement strategy
Work Product Doctrine
Consequences
Material becomes discoverable
Malpractice
Attorney-Client Privilege
Crime Fraud Exception
(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”
When Is Crime/Fraud Considered “Ongoing” for the Purposes of Confidentiality Exception?
Probably:
– Undetected tax fraud (Chen)
– Undetected financial fraud (Enron; OPM)
May or Must Disclose
MR 1.2 (d), comment 10
MR 4.1 (b), comment 3
MR 1.2 (d), Comment 10
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.
MR 4.1 (b), Comment 3
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.
“Disaffirm”
Repudiate; declare void
“Noisy” Withdrawal
Enron Examples
Probably required: – VE lawyers representing Enron – Authored disclosures legitimizing SPEs Probably not required: – K& E lawyers representing SPE – No audience with defrauded investors
Reporting Out: MR 1.13
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
Reporting Out: MR 1.6
Context: – Generally applicable rule Goal: – Prevent harm to public Permissive disclosure, however noisy withdrawal comments may make mandatory
Reporting Out: SOX
Context: – Practicing before the SEC Goal: – Prevent harm to issuer or investors – Note: more like MR 1.13 than 1.6 Permissive disclosure
Confidentiality:
Retaliatory Discharge
(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
Upjohn Takeaways
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
Professional Duty of Confidentiality:
Key Exceptions
– 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)
Attorney-Client Privilege:
Key Exceptions
– Crime fraud (Chen)
Work Product Doctrine:
Key Exceptions
– Crime fraud (Chen)
