Confidentiality and Privilege Flashcards
Duty of Confidentiality
A lawyer must not reveal any information relating to the representation of a client, unless the client consents or some other exception applies.
A lawyer also has an affirmative duty to take reasonable measures to prevent unauthorized access to, or inadvertent disclosure of, the client’s confidential information.
Applies regardless of the source of the information.
Timing of the duty of confidentiality
The duty of confidentiality applies to info gained during consultations with prospective clients, even if the lawyer isn’t hired.
It continues to apply even after a lawyer-client relationship has terminated and even after the death of a client.
Exceptions to the duty of confidentiality
A lawyer may disclose confidential information only to the extent reasonably necessary to meet each of the following exceptions:
1. consent or implied authority
2. to prevent death or substantial bodily harm*
3. prevent or rectify substantial financial loss*
4. defend or establish claim by lawyer against client
5. obtain legal ethics advice*
5. address conflict resulting from organizational change*
6. comply with court order
* indicates applicable CA exception
Consent or implied authority
Exception to confidentiality
A lawyer may reveal infromation relating to the representation of a client if the client gives informed consent or if the disclosure is impliedly authorized in order to carry out the representation.
Prevent death or substantial bodily harm
Exception to confidentiality
A lawyer may reveal information to prevent reasonably certain death or substantial bodily harm
In CA: the disclosure must be to prevent a criminal act that is likely to result in death or substantial bodily harm. Before the disclosure, the lawyer must make a good faith effort to persuade the client not to commit or continue criminal activity. The lawyer must also inform the client of the lawyer’s ability or decision to reveal confidential information.
Prevent or rectify substantial financial loss
Exception to confidentiality
A lawyer must disclose confidential information to prevent the client from committing a crime or fraud that is reasonably certain to cause substantial financial loss to a person, if the client is using or has used the lawyer’s service in furtherance of the crime or fraud.
In CA: no financial loss exception
Defend self or establish claim against client
Exception to confidentiality
A lawyer may disclose confidential information about their client’s matter if the client sues the lawyer for malpractice, brings disciplinary actions against lawyer, and refuses to pay the lawyer.
There must be an actual claim or proceeding involved.
Obtain legal ethics advice
Exception to confidentiality
A lawyer may disclose confidential information to obtain confidential legal advice about the lawyer’s personal duty to comply with legal ethics rules.
In CA: no “ethics advice” exception
Address conflict resulting from organizational change
Exception to confidentiality
A lawyer may reveal information to detect and resolve conflicts of interest arising from their change of employment or from changes in a law firm’s composition.
The lawyer must not reveal information that would compromise the AC privilege or prejudice the client.
In CA: no such exception.
Comply with court order
Exception to confidentiality
A lawyer is permitted to comply with a court order or other law requiring the lawyer to disclose information about a client.
However, the lawyer should first try to challenge a court order requiring disclosure and seek the appellate review if there are grounds to do so.
Attorney-client privilege
California exception applies
Allows a client to refuse to testify and prevent their lawyer from testifying before a court or other governmnet tribunal about confidential communications bw them or their respective agents.
Applies only to communications that pertain to legal services.
When the client is a corporation, communications with a corporate employee are generally privileged if they are directed or authorized by the corporation and concern the employee’s duties.
In CA: the AC privilege terminates after the client’s death when the client’s estate is settled and the personal representative is discharged.
How to distinguish confidentiality from AC privilege
The AC privilege is much narrower.
The AC privilege is an exclusionary rule of evidence law and prevents compulsive testimony.
The duty of confidentiality is **an ethical rule **and prevents all types of disclosures, both inside and outside the court room (only covers confidential communications)
Exceptions to the AC privilege
California exception applies
The privilege doesn’t apply:
1. where the client seeks the attorney’s service to enable or aid anyone to commit a future crime or fraud
2. to a communication that is relevant to an issue of breach of the duties arising out of the AC relationship, or where the client puts the legal services at issue.
3. in civil litigation bw multiple persons who were formerly joint clients of the lawyer
4. when the lawyer is called to give evidence about the competency or intention of a client who has attempted to dispose of property by will or inter vivos.
In CA: an exception to the AC privilege applies when disclosure is necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in a person’s substantial bodily harm or death
