Confidentiality and Privilege

Question 1

Duty of Confidentiality

Answer 1

Can’t reveal any info relating to the representation of a client unless the client consents or some other exception applies.

Can’t use information to client’s disadvantage. Can’t act on it to hurt them.

Must take reasonable measures to prevent access to or inadvertent disclosure of confidential info.

Question 2

Timing of Confidentiality

Answer 2

Applies to consultations with prospective clients even if never hired

Confidentiality continues AFTER relationship ends

Question 3

Exceptions to Duty of Confidentiality

Answer 3

These are always permissive occasions where you can breach confidentiality:

1) (ABA + CA) Consent or implied authority by the client that you have permission to disclose their info

2) (ABA) To prevent death or substantial bodily harm
-> (CA) to prevent criminal act likely to lead to death or injury

3) (ABA only, not allowed in CA) To prevent or rectify substantial financial loss

4) Defend yourself or establish claim against client (can’t just defend yourself on Yelp, this is narrower and is for legal defense)

5) To seek an ethics opinion. A lawyer can ask another lawyer for ethics advice in confidence.

6) To address conflicts/do conflicts checks within a firm

7) Comply with court order, law, or other ethics rule

Question 4

Attorney-Client Privilege

Answer 4

Allows client to refuse to testify and prevent lawyer from testifying about confidential communications pertaining to legal services between the lawyer/reps and client/reps.

Atty-client privilege is an exclusionary rule of evidence law preventing testimony, whereas confidentiality prevents disclosures both inside and outside courtroom as a prophylactic rule.