Confidentiality and Privilege

Question 1

DUTY OF CONFIDENTIALITY

Answer 1

(1) A lawyer must not reveal any information relating to the representation of a client, regardless of the source of the info, unless an exception applies.
(2) A lawyer must take reasonable measures to prevent unauthorized access to, or inadvertent disclosure, of the client’s confidential information.

Question 2

WHEN CONFIDENTIAL INFORMATION MAY BE DISCLOSED (General Rule)

Answer 2

A lawyer may only disclose a client’s confidential information if the client (1) gives informed consent or (2) disclosure is impliedly authorized to carry out the representation or (3) an exception to the duty applies.

Question 3

DEATH OR BODILY HARM EXCEPTION TO DUTY OF CONFIDENTIALITY

Answer 3

ABA: may disclose confidential info to prevent reasonably certain death or substantial bodily harm

CA: may disclose only to prevent a future criminal act likely to result in death or substantial bodily harm. Before disclosure must make a good faith effort to persuade the client not to commit the act and inform client of lawyer’s ability to reveal the info

Question 4

FINANCIAL LOSS EXCEPTION TO DUTY OF CONFIDENTIALITY (ABA ONLY)

Answer 4

ABA: may disclose confidential info to prevent the client from committing crime or fraud that is reasonably certain to cause substantial financial loss to a person IF the client is using the lawyer’s services in furtherance of the crime

CA: no exception for financial loss

Question 5

ATTORNEY’S DEFENSE EXCEPTION TO DUTY OF CONFIDENTIALITY

Answer 5

ABA: may disclose confidential info to collect a legal fee or defend the lawyer from a charge/claim of wrongdoing (i.e. legal malpractice claim)

CA: recognize the exception

Question 6

LEGAL ETHICS ADVICE EXCEPTION TO DUTY OF CONFIDENTIALITY (ABA ONLY)

Answer 6

ABA: A lawyer may disclose confidential information to obtain confidential legal ethics advice.

CA: No exception

Question 7

ORGANIZATIONAL CONFLICTS EXCEPTION TO DUTY OF CONFIDENTIALITY (ABA ONLY)

Answer 7

ABA: may disclose confidential information to detect or address conflicts of interest resulting from an organizational change (change of employment, merger, or purchase of a law practice). (Note that standard conflicts checks within a firm would usually be “impliedly authorized.”)

CA: no exception

Question 8

COMPLIANCE EXCEPTION TO DUTY OF CONFIDENTIALITY

Answer 8

ABA: A lawyer may disclose confidential information to comply with a court order or other law.

CA: Courts have recognized the exception for complying with a court order or law.

Question 9

ATTORNEY-CLIENT PRIVILEGE

Answer 9

ABA: Allows a client to refuse to testify and prevent their attorney from testifying in court about confidential communications between the two or their respective agents. The attorney-client privilege is perpetual; it even survives the client’s death.

CA: attorney-client privilege terminates when the client’s estate is settled and their personal representative is discharged.

Question 10

EXCEPTIONS TO ATTORNEY-CLIENT PRIVILEGE

Answer 10

ABA;

(1) Client seeks the attorney’s services to enable or aid anyone to commit a future crime or fraud.
(2) To a communication relevant to an issue of breach of the duties arising out of the lawyer-client relationship.
(3) In civil litigation between persons who were formerly the joint clients of the attorney.
(4) In a variety of situations relating to the competency or intent of a client who has attempted to dispose of property by will or inter vivos transfer.

CA: same as above but also additional exception
(4) When disclosure is necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in a person’s substantial bodily injury or death