confidentiality Flashcards
Evidentiary Duty of Confidentiality
a. FRCP 26
i. Party may discover any matter so long as it is not privileged that is relevant to a claim or defense.
1) Communications between the lawyer and client
2) Work product of the attorney
ii. Privilege is owned by the client
Disclosure by the lawyer may result in (1) Bar Sanctions, (2) malpractice actions and (3) Other.
Work Product Privilege
i. FRCP 26 (b)(3)
1) To claim work product privilege the party must show that the material is a document prepared in anticipation of litigation and by or for a party or by or for party’s attorney.
2) Special Need Exception
a) Work/Product is discoverable if:
i) (1) there is a substantial need for materials & (2) the party is unable without undue hardship to obtain (3) a substantial equivalent of the materials by other means
3) Exception to Special need
If production is allowed under the exception, the court must prevent disclosure of the lawyers (1) mental impressions, (2) conclusions (3) opinions, or (4) legal Theories.
Obtaining work product from another attorney
1) Federal rules of evidence
a) If a witness uses a writing to refresh memory for purpose of testifying, an adverse party is entitled to production if it is in the interest of justice.
b) Establish as deposition that document was prepared and kept in the ordinary course of business
Establish that witness used document to refresh memory for deposition
presence of another person
Presumption that the presence of another person destroys attorney client privilege
Extent and Duration of Attorney Client Privilege
1) General Rule
a) Attorney Client Privilege survives the death of the client in civil case and criminal cases. However there could be a question of whether it could be used to exonerate capital defendants?
i) Testamentary Exception
1. Deceased clients personal representative may waive the clients privilege when the heirs claim through client.
b) MR 1.18(b)
i) Even when there isn’t an attorney client relationship, the lawyer shall not use or reveal information receieved from a potential client.
c) Preamble
There are some duteis such as Confidentiality that attach when the lawyer aggrees to consider whether an A/C relationship shall be established.
waiving attorney client privilige
a) Waiver
i) Privilege belongs to the client and can be voluntarily waived by either the Client or Attorney by disclosing information to others.
b) Failure to assert
i) The lawyer must assert privilege or it is waived
ii) Oral Questions - need to assert privilege when asked about a privileged statement
Assert is established by a log of the privileged documents
Duty of a recieving lawyer
1) General Rule
a) MR 4.4(b)
i) A lawyer who receives a document and knows or reasonably should know that document was inadvertently sent, and should promptly notified the sender.
b) Comment 2
i) L who inadvertently disclosed info, may take protective measures.
The Receiving lawyer may choose to return or delete the information and that decision is a matter of professional judgement.
Ethical v. Evidentiary confidentiality
i. Evidentiary
1) Prevents production in judicial proceeding
2) Protects information between the lawyer and the client( not Facts)
3) Protects communications between the client and lawyer
ii. Ethical Duty
1) Prohibits disclosure in any setting
2) Protects information relating to representation of client (includes Facts)
3) Applies to all information, whatever its source.
a) Information from third parties are also protected.
Ethical Rules of confidentiality
The Ethical rule of Confidentiality
1) MR 1.6(a)
The lawyer shall not reveal any information unless the client gives (1) informed consent, (2) disclosure impliedly authorized in order to carry out representation, or (3) an exception applies MR 1.6(1-6)).
Ethical Rules of confidentiality Exception List (ETTROC)
death or bodily harm intent to commit crime Inhouse duty to disclose disclosure to avoid criminal behavior lawyer and client defense Legal advice comply with the courts disclosure to determine conflicts of intest
ETTROCe 1
a) (MR 1.6(1)) Disclosure to prevent death or serious bodily injury
The lawyer may reveal information the lawyer reasonably believes is necessary to prevent reasonably certain death or substantial bodily harm.
ETTROCe 2
b) (MR 1.6 (2)) Intention to commit a crime or fraud
A Lawyer may reveal information reasonably necessary to prevent the client from committing a crime or fraud reasonably certain to result in substantial injury to financial interest or property.
ETTROCe3
c) MR. 1.13(b)(C) (in house lawyers duty to disclose)
i) A lawyer shall take a matter up the ladder to the highest authority that can act on behalf of the organization.
ii) If the highest authority fails to correct the problem in a timely and appropriate manner, then it is clearly an illegal act and because he lawyer believes their violation is reasonably certain to result in substantial injury to organization. (the lawyer may reveal information outside of corporation).
(d) : The right to disclose does not apply to a lawyer who is hired by organization to: investigate a violation of law; or to defend an organization against a claim.
ETTROCe 4
d) MR 1.2 (d) Disclosure to avoid Aiding Criminal Behavior
i) Rules
1. A lawyer may discuss legal consequences of any proposed course of conduct or counsel the client to make good faith effort to determine alidity, scope, meaning or application of law.
2. A lawyer may not assist a client in conduct the lawyer knows is criminal or fraudulent.
3. Comment 10: if being used by the client to further a crim or fraud the lawyer must resign.
ii) What to do if you work has been used to perpetuate a crime or fraud?
MR 4.1(b) the lawyer shall disclose a material fact to 3rd person when necessary to avoid assisting client in a commission of a crime or fraud against a 3rd person unless disclosure is prohibited by rule 1.6.
ETTROCe 5
e) M.R. 1.6 (b)(5)
i) Lawyer may reveal clients information to the exten reasonably necessar to establsih a claim or defense between the lawyer and the client or to defend yourself against criminal or civil claims based on conduct where the client was involved.
ii) Comment 14
1. A lawyer need not wait until the proceeding has commenced, but may use confidence to defend against charge from anyone and should respond directly to a 3rd party making the charge.
If disclosure is made in a judicial proceeding the lawyer should do their best to limit access to the disclosed information to the court or persons needing to know. Do your best to get a gag order.
