Confidentiality - attorney- client privilege - work product Flashcards
Hypo:
Your friend Arianna asks you to represent her in her divorce from Tom.
* Discussion of spouse’s infidelity.
* You are concerned about her mental and physical health.
* You file a petition for divorce.
You assume representation and file a petition for divorce.
Has an attorney client relationship been formed?
Yes. Attorney-Client relationship has been formed.
Hypo:
Your friend Arianna asks you to represent her in her divorce from Tom.
* Discussion of spouse’s infidelity.
* You are concerned about her mental and physical health.
* You file a petition for divorce.
You assume representation and file a petition for divorce.
Attorney- Client Relationship has been formed.
Is everything the attorney learns going to be protected? If so, by what?
Duty of Confidentiality
Hypo:
Your friend Arianna asks you to represent her in her divorce from Tom.
* Discussion of spouse’s infidelity.
* You are concerned about her mental and physical health.
* You file a petition for divorce.
You assume representation and file a petition for divorce.
Attorney- Client Relationship has been formed.
Is the fact that A is our client protected? If so, by what? If not, why not?
The fact that A is our client is protected by the duty of confidentiality.
The fact that A is our client is not protected by the Attorney-Client Privilege
Protected under DOC but not ACP.
All of the conversations about the divorce, the reason for the divorce is going to enjoy what protections?
Duty of Confidentiality
Attorney- Client Privilege
All of the conversations about the divorce, the reason for the divorce is going to enjoy the Duty of Confidentiality and the Attorney-Client Privilege.
You cannot divulge any of the information under what?
The ____________ is only going to come into play when someone is trying to force me and compel me to tell information about the conversation.
Duty of Confidentiality
Attorney-Client Privilege
Concerned Lala
* You run into a mutual friend Lala.
* Lala asks if you sense that Arianna has been worried about something lately.
* She says she saw her the other day and she seemed depressed.
Which (if any) answer complies with Rule 1.6(a)?
A. Arianna hired me to file a petition for divorce.
B. Arianna learned that her husband cheated on her.
C. I’m really worried, too. She told me she’s not sleeping.
D.None complies with Rule 1.6(a).
D.None complies with Rule 1.6(a).
As you represent Arianna in her divorce proceedings
- What information are you impliedly authorized to reveal to opposing counsel under Rule 1.6(a)?
- Can you reveal information about Arianna’s case to other attorneys in
your law firm? (Cite a comment to Rule 1.6 in your answer).
Comment 5
Except to the extent that the client’s instructions or special circumstances limit that authority, a lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation. In some situations, for example, a lawyer may be impliedly authorized to admit a fact that cannot properly be disputed or to make a disclosure that facilitates a satisfactory conclusion to a matter
Lawyers in a firm may, in the course of the firm’s practice, disclose to each other information relating to a client of the firm, unless the client has instructed that particular information be confined to specified lawyers.
_________ and _______ is on the attorney. ______ on the client.
strategy and methodology
objectives
Can reveal information to other people in your firm. Assume that anything that is confidential for you is confidential for firm as well.
Caveat:
If client has told you not to share it with your firm then you cannot share it.
If Arianna comes in knife in hand, I am going to kill tom. What should you do first?
Try to talk her down.
If Arianna comes in knife in hand, I am going to kill tom.
After you try to talk her down, what should you do?
If you don’t feel that you are able to talk her down you have talked her down you MAY if you want reveal that information as narrowly as possible - you can call tomorrow and let him know but do it as narrowly as possible.
If Arianna comes in knife in hand, I am going to kill tom.
What rule is implicated?
Rule 1.6(b)(1)
A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm.
BLOODY Knife in hand I just stabbed Tom – you cannot prevent it has already happened.
What does this mean?
Rule 1.6(b)(1) does not apply because
Rule 1.6(b)(1)
A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm.
BLODDY knife – I stabbed him, and I hope he is dead
What happens?
Rule 1.6(b)(1) is implicated.
Step 1: Talk to the client and try to get them to do the right thing.
Step 2: You MAY reveal to authorities if you reasonably believe chance to save him.
If Tom bleeds out that is not a violation of the rules.
1.6(b)(2) and (3) what is the important element?
did they use the attorney’s services
1.6(b)(2) has the crime happened yet?
NO
1.6(b)(3) has the crime happened yet?
crime already executed that will have an injury to the property of another that is reasonably certain to result – already happened but opportunity to mitigate damages is 3.
When unsure about – disclose only as much as reasonably necessary to seek advice about are you complying with the rules. Reach out to another attorney. If you are seeking legal advice from them it is protected by ACP and DOC., Remember: you could speak in hypotheticals and be careful they do not give away too much information where the listener could identify the client
What rule does this implicate?
Rule 1.6(b)(4)
Only as much as reasonably necessary. Your client makes issue of where you negligent. Tension between you and your client and ensuing controversy this is your self-help remedy. You can defend yourself and this is the rule that allows you to do that.
google review from a disgruntled client – false things about you – how do you respond to that? Is it a controversy and even if it was what extent can you reveal information it is very low. Could feel unfair but we want clients to feel comfortable telling us everything
What Rule?
Rule 1.6(b)(5)
Anytime you see subsection 6 in play do a dual analysis. Consideration of DOC and ACP. To comply with another law or court order. – court order usually subpoena and when a court is subpoenaing you and wants you to testify that information is protected by the DOC and under permissive rules you have a carveout that would allow you to disclose as reasonably necessary to disclose but still have issue of ACP. Do a full analysis for the ACP as well. Assert every non-frivolous claim asserting the privilege and the court disabuse you of what privilege will be upheld. You want to take it back to the client if they want to appeal a decision. ACP but the permissive nature of_________ – some other law we are not going to hold you in violation of 1.6
1.6(b)(6)
Firms are merging or talking about merging, or one attorney leaves another firm – cursory conflict check to make sure the assuming of that client doesn’t impute too many conflicts that will prevent them from taking certain cases. Comments – only want to do this once there have been substantial enough conversations. Substantial conversations – real consideration or option that we are going to merge – only reveal as much information as necessary to determine whether there are conflicts – name and overview of what the cases are about. Don’t want to waive privilege.
What rule is implicated?
Rule 1.6(b)(7)
ven when you are not licensed in a jurisdiction – unauthorized practice of law if they believe you to be their attorney it will receive _______ and _____.
Duty of confidentiality
Attorney- Client privilege
