Confidentiality - Attorney-Client Privilege - Work- Product Flashcards
There are three distinct doctrines that work together that include:
1.
2.
3.
- Duty of Confidentiality
- The Attorney-Client Privilege
- Work-Product Immunity
A ________ _______ is a statement (verbal, written, or non-verbal) made in confidence between the client and his lawyer for the purpose of obtaining or providing legal assistance for the client.
confidential communication
A confidential communication is a statement (_______, _______, ________) made in confidence between the client and his lawyer for the purpose of obtaining or providing legal assistance for the client.
verbal, written, or non-verbal
A _______ _________ is privileged unless the privilege is waived or an exception to the privilege applies.
confidential communication
A confidential communication is _________ unless the __________ is waived or an exception to the _________ applies.
privileged
privilege
privilege
What is the largest umbrella of information that is protected?
The duty of confidentiality
________ _______ is much broader in scope than information protected by the attorney-client privilege.
Confidential Information
Confidential information is much broader in scope than information protected by the ________ ____ _______.
Attorney-client privilege
The _______ ____ _______ applies in situations other than those in which evidence is sought from the lawyer through legal compulsion.
duty of confidentiality
The duty of confidentiality applies in situations other than those in which evidence is sought from the lawyer through _____ ________.
legal compulsion
The duty of confidentiality applies in situations other than those in which evidence is sought from the lawyer through legal compulsion. It applies to matters communicated in confidence by a ________ as well as __________ relating to the ____________ of the client, from any ________.
client
information
representation
source
______ ___ ________ bars voluntary disclosure of client confidential material
Duty of Confidentiality
Duty of confidentiality bars ______ ________ of client confidential material
voluntary disclosure
Duty of confidentiality bars voluntary disclosure of _____ ________ ________.
client confidential material
A court may order the disclosure of information protected by the ______ ___ ________ that is not subject to ______ ____ _______.
duty of confidentiality
attorney-client privilege
Confidentiality of Information: A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
What Rule?
Rule 1.6(a)
Rule 1.6(a) Confidentiality of Information: A lawyer ____ _______ reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
shall not
Rule 1.6(a) Confidentiality of Information: A lawyer shall not reveal information relating to the representation of a client unless the client gives _______ _______, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
informed consent
Rule 1.6(a) Confidentiality of Information: A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the ________________________________, or the disclosure is permitted by paragraph (b).
disclosure is impliedly authorized in order to carry out the representation
Rule 1.6(a) Confidentiality of Information: A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or ___________________________.
the disclosure is permitted by paragraph (b).
Rule 1.6(a) Confidentiality of Information: A lawyer shall not reveal ____________________________________ unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
information relating to the representation of a client
Rule 1.6(a) Confidentiality of Information: A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
The duty also extends to _______ ______. Rule 1.18(b).
prospective clients
Rule 1.6(a) prohibits a lawyer from revealing information relating to the representation of a client. This prohibition also applies to
1. Disclosures by a lawyer that do not in themselves ______ ______ _______ but could reasonably lead to the discovery of such information by third persons.
2.
reveal protected information
Rule 1.6(a) prohibits a lawyer from revealing information relating to the representation of a client. This prohibition also applies to
1. Disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by _____ ______.
2.
third persons
Rule 1.6(a) prohibits a lawyer from revealing information relating to the representation of a client.
Can the lawyer reveal the identity of the client?
NO
Rule 1.6(a) prohibits a lawyer from revealing information relating to the representation of a client.
Does this encompass information discovered in the investigation of the case?
YES
Rule 1.6(a) prohibits a lawyer from revealing information relating to the representation of a client. This prohibition also applies to
1. ?
2.
- Disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by third person
Rule 1.6(a) prohibits a lawyer from revealing information relating to the representation of a client. This prohibition also applies to
1.
2. A lawyer’s use of a _________ to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client, or the situation involved. Comment 4.
hypothetical
Rule 1.6(a) prohibits a lawyer from revealing information relating to the representation of a client. This prohibition also applies to
1.
2. A lawyer’s use of a hypothetical to discuss issues relating to the representation is permissible so long as there is ____ ______ ________ that the listener will be able to ascertain the identity of the client, or the situation involved. Comment 4.
no reasonable likelihood
Rule 1.6(a) prohibits a lawyer from revealing information relating to the representation of a client. This prohibition also applies to
1.
2. A lawyer’s use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the _______ __ ___ ______, or the _______ _______. Comment 4.
identity of the client
situation involved
**Caveat: if information is ______ ______, such as representation.
widely known
Information relating to representation of a client is __________, other than information that is generally known. Restatement § 59.
confidential
Information relating to representation of a client is confidential, other than information that is ______ _______. Restatement § 59.
generally known
The firm must have procedures in place (including training) to ensure that ________ do not violate the duty of confidentiality. MRPC 5.3.
non lawyers
The firm must have _________ in place (including training) to ensure that non-lawyers do not violate the duty of confidentiality. MRPC 5.3.
procedures
Even when no _____ _____ ________ ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client. Rule 1.18(b).
client- lawyer relationship
Even when no client lawyer relationship ensues, a lawyer who has learned information from a ______ ________ shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client. Rule 1.18(b).
prospective client
Even when no client lawyer relationship ensues, a lawyer who has learned information from a _______ ______ shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a _____ _______. Rule 1.18(b).
prospective client
former client
The _____ ___ ________ continues after the client-lawyer relationship has terminated. Rule 1.9(c)(2). Comment 20
duty of confidentiality
The duty of confidentiality continues after the _______ ____ _________ has terminated. Rule 1.9(c)(2). Comment 20
client-lawyer relationship
The duty of confidentiality continues after the client-lawyer relationship has _______. Rule 1.9(c)(2). Comment 20
terminated
Rule 1.9(c)(1) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: use information relating to the representation to the ________ of the ______ ______ except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
disadvantage
former client
Rule 1.9(c)(1) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become _______ __________; or
generally known
Rule 1.9(c)(2) Reveal information relating to the representation except as these Rules would permit or require with respect to a ______.
client
ABA Ethics Opinion 479 (2017)
Information is ______ _______ within the meaning of Model Rule 1.9(c)(1) if it is widely recognized by members of the public in the relevant geographic area or it is widely recognized in the former client’s industry, profession, or trade. For information to be generally known it must previously have been revealed by some source other than the lawyer or the lawyer’s agents. Information that is publicly available is not necessarily ________ _______.
generally known
generally known
ABA Ethics Opinion 479 (2017)
Information is generally known within the meaning of Model Rule 1.9(c)(1) if it is _______ _________ by members of the public in the relevant geographic area or it is widely recognized in the former client’s industry, profession, or trade. For information to be generally known it must previously have been revealed by some source other than the lawyer or the lawyer’s agents. Information that is publicly available is not necessarily generally known.
widely recognized
ABA Ethics Opinion 479 (2017)
Information is generally known within the meaning of Model Rule 1.9(c)(1) if it is widely recognized by ________ of the _______ in the relevant ______ _______ or it is widely recognized in the former client’s industry, profession, or trade. For information to be generally known it must previously have been revealed by some source other than the lawyer or the lawyer’s agents. Information that is publicly available is not necessarily generally known.
members of the public
geographic area
ABA Ethics Opinion 479 (2017)
Information is generally known within the meaning of Model Rule 1.9(c)(1) if it is widely recognized by members of the public in the relevant geographic area or it is ______ ________ in the former client’s industry, profession, or trade. For information to be generally known it must previously have been revealed by some source other than the lawyer or the lawyer’s agents. Information that is publicly available is not necessarily generally known.
widely recognized
ABA Ethics Opinion 479 (2017)
Information is generally known within the meaning of Model Rule 1.9(c)(1) if it is widely recognized by members of the public in the relevant geographic area or it is widely recognized in the ______ ______ ______, ______, or ________. For information to be generally known it must previously have been revealed by some source other than the lawyer or the lawyer’s agents. Information that is publicly available is not necessarily generally known.
former client’s industry, profession, or trade
ABA Ethics Opinion 479 (2017)
Information is generally known within the meaning of Model Rule 1.9(c)(1) if it is widely recognized by members of the public in the relevant geographic area or it is widely recognized in the former client’s industry, profession, or trade. For information to be ________ ________ it must previously have been revealed by some source other than the lawyer or the lawyer’s agents. Information that is publicly available is not necessarily generally known.
generally known
For information to be general known it must ___________ have been _______ by some ______ other than the ______ or the ______ ______.
previously
revealed
source
lawyer
lawyer’s agents
ABA Ethics Opinion 479 (2017)
Information is generally known within the meaning of Model Rule 1.9(c)(1) if it is widely recognized by members of the public in the relevant geographic area or it is widely recognized in the former client’s industry, profession, or trade. For information to be generally known it must previously have been revealed by some source other than the lawyer or the lawyer’s agents. ___________ that is ________ _________ is ____ ________ generally known.
information
publicly available
not necessarily
Rule 1.9(c)(1) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
Rule 1.9(c)(2) Reveal information relating to the representation except as these Rules would permit or require with respect to a client.
The former client can waive this requirement through _______ _______, confirmed in ______. MRPC 1.9(c), Comment 9.
informed consent
writing
Policy Rationale: Comment 2 Rule 1.6
A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s _______ _________, the lawyer must not reveal information relating to the representation. This contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct. Almost without exception, clients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld.
informed consent
Policy Rationale: Comment 2 Rule 1.6
A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation. This contributes to the _______ that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to _______ _____ _______ and to ________ ______ and ________ with the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct. Almost without exception, clients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld.
trust
seek legal assistance
communicate fully and frankly
A person who ______ ____ ____ ______ about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client. Rule 1.18(a).
consults with a lawyer
A person who consults with a lawyer about the possibility of _______ a ______ ___ _______ with respect to a matter is a prospective client. Rule 1.18(a).
forming
client-lawyer relationship
A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a _______ ________. Rule 1.18(a).
prospective client
Define Prospective Client
A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client. Rule 1.18(a).
A lawyer owes the ________ ________ confidentiality and conflict-free consultation
prospective client
A lawyer owes the prospective client _________ and a _____ _____ _________.
confidentiality
conflict-free consultation
A lawyer ____ ______ represent a client with interests materially adverse to those of a prospective client in the same or substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter. Rule 1.18(c).
shall not
A lawyer shall not represent a client with _______ _______ _______ to those of a prospective client in the same or substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter. Rule 1.18(c).
interests materially adverse
A lawyer shall not represent a client with interests materially adverse to those of a _______ ________ in the same or substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter. Rule 1.18(c).
prospective client
A lawyer shall not represent a client with interests materially adverse to those of a prospective client in the _______ or _______ _______ ________ if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter. Rule 1.18(c).
same or substantially related matter
A lawyer shall not represent a client with interests materially adverse to those of a prospective client in the same or substantially related matter if the lawyer ______ ________ from the prospective client that could be significantly harmful to that person in the matter. Rule 1.18(c).
received information
A lawyer shall not represent a client with interests materially adverse to those of a prospective client in the same or substantially related matter if the lawyer received information from the ______ _______ that could be significantly harmful to that person in the matter. Rule 1.18(c).
prospective client
A lawyer shall not represent a client with interests materially adverse to those of a prospective client in the same or substantially related matter if the lawyer received information from the prospective client that could be ________ ________ to that person in the matter. Rule 1.18(c).
significantly harmful
When a ________ ________ consults with the attorney, the _________ _______ is entitled to attorney confidentiality. BUT if an attorney-client relationship does not ensue, the attorney is not precluded from representing another party with interests materially adverse to the prospective client in the same or substantially related matter unless the lawyer received information from the prospective client that could be significantly harmful to the person in the matter. Rule 1.18(c).
prospective client
prospective client
When a prospective client consults with the attorney, the prospective client is entitled to attorney confidentiality. BUT if an _______ _________ relationship does not ensue, the attorney is ______ ________ from representing another party with interests materially adverse to the prospective client in the same or substantially related matter unless the lawyer received information from the prospective client that could be significantly harmful to the person in the matter. Rule 1.18(c).
attorney client
not precluded
When a prospective client consults with the attorney, the prospective client is entitled to attorney confidentiality. BUT if an attorney-client relationship does not ensue, the attorney is not precluded from representing another party with ______ _____ ______ to the prospective client in the same or substantially related matter unless the lawyer received information from the prospective client that could be significantly harmful to the person in the matter. Rule 1.18(c).
interests materially adverse
When a prospective client consults with the attorney, the prospective client is entitled to attorney confidentiality. BUT if an attorney-client relationship does not ensue, the attorney is not precluded from representing another party with interests materially adverse to the _______ _______ in the same or substantially related matter unless the lawyer received information from the prospective client that could be significantly harmful to the person in the matter. Rule 1.18(c).
prospective client
When a prospective client consults with the attorney, the prospective client is entitled to attorney confidentiality. BUT if an attorney-client relationship does not ensue, the attorney is not precluded from representing another party with interests materially adverse to the prospective client in the _______ or __________ _______ matter unless the lawyer received information from the prospective client that could be significantly harmful to the person in the matter. Rule 1.18(c).
same or substantially related
When a prospective client consults with the attorney, the prospective client is entitled to attorney confidentiality. BUT if an attorney-client relationship does not ensue, the attorney is not precluded from representing another party with interests materially adverse to the prospective client in the same or substantially related matter ________ the lawyer received information from the prospective client that could be significantly harmful to the person in the matter. Rule 1.18(c).
unless
When a prospective client consults with the attorney, the prospective client is entitled to attorney confidentiality. BUT if an attorney-client relationship does not ensue, the attorney is not precluded from representing another party with interests materially adverse to the prospective client in the same or substantially related matter unless the lawyer received information from the _______ ________ that could be ________ ________l to the person in the matter. Rule 1.18(c).
prospective client
significantly harmful
If a lawyer is ________ from representation no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter.
disqualified
When the lawyer has received disqualifying information representation is permissible if
1.Both the _____ _______ and the ______ ________ have given informed consent, confirmed in writing.
affected client
prospective client
When the lawyer has received disqualifying information representation is permissible if
1.Both the affected client and the prospective client have given _______ ________, confirmed in ________.
informed consent
writing
When the lawyer has received disqualifying information representation is permissible if
1.Both the affected client and the prospective client have given informed consent, confirmed in writing.
2.The lawyer who received the information took reasonable measures to ______ _______ to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client and
(i) The disqualified lawyer is ______ _______ from any participation in the matter and is apportioned no part of the fee therefrom AND
(ii) _____ _______ is promptly given to the prospective client.
avoid exposure to
timely screened
written notice
Should receive some, but not all, of the protections afforded to clients (i.e., confidentiality, competence). Comment 1
Prospective Clients
“Consultation” can be written, oral, or electronic. Comment 2
Prospective Clients
A “_________” does not occur if the person provides information in response to advertising that merely describes the lawyer’s education, experience, and other general background information. Comment 2.
consultation
A “consultation” does not occur if the person provides information in response to _________ that merely describes the lawyer’s education, experience, and other general background information. Comment 2.
advertising
_______ _________ without any expectation lawyer is willing to discuss forming relationship is NOT prospective client.
unilateral communication
Unilateral communication without any expectation lawyer is willing to discuss forming relationship is NOT _______ ______.
prospective client
A __________ is likely to have occurred if a lawyer, either in person or through the lawyer’s advertising in any medium, specifically requests or invites the submission of information about a potential representation without clear and reasonably understandable warnings and cautionary statements that limit the lawyer’s obligations, and a person provides information in response.
consultation
A consultation is likely to have occurred if a lawyer, either in person or through the lawyer’s advertising in any medium, _______ ________ or invites the submission of information about a potential representation without clear and reasonably understandable warnings and cautionary statements that limit the lawyer’s obligations, and a person provides information in response.
specifically requests
A consultation is likely to have occurred if a lawyer, either in person or through the lawyer’s advertising in any medium, specifically requests or invites the submission of information about a potential representation without clear and reasonably understandable _________ and ________ _________ that limit the lawyer’s obligations, and a person provides information in response.
warnings
cautionary statements
A lawyer needs to know ______ ___ _______ and whether the lawyer is willing to take the case to determine whether to accept the case.
conflicts of interest
The _____ ___ _______ applies to all information learned during the consultation. Rule 1.18 Comment 3.
duty of confidentiality
Keep the initial consultation limited to only getting the information you ______. Rule 1.18 Comment 4
need
_______ accept documents or property for safekeeping but be careful. Rule 1.18 Comment 9.
May
The ______ _____ ________ is an evidentiary rule.
attorney-client privilege
The attorney-client privilege is an ______ ______.
evidentiary rule
The _______ ____ ______ and the work-product doctrine apply in judicial and other legal proceedings in which a lawyer may be called to be a witness or otherwise required to produce evidence concerning a client.
attorney-client privilege
The attorney-client privilege and the work-product doctrine apply in _______ and other _____ ________ in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client.
judicial and other legal proceedings
The attorney-client privilege and the work-product doctrine apply in judicial and other legal proceedings in which a lawyer may be called as a ________ or otherwise required to produce evidence concerning a client
witness
A court cannot order the revelation of material subject to the _____ _____ ______.
attorney-client privilege
The ______ _______ _______ and _____ ______ _______ bar compelled disclosure of client confidential material.
attorney-client privilege
work product immunity
The Attorney-Client Privilege and Work Product Immunity bar ________ ________ of client confidential material.
compelled disclosure
The Attorney-Client Privilege
1. ?
2.
3.
4.
- A communication
The Attorney-Client Privilege
1.
2. ?
3.
4.
- Between privileged persons (i.e., attorney and client, attorney and prospective client)
The Attorney-Client Privilege
1.
2.
3. ?
4.
- In confidence
The Attorney-Client Privilege
1.
2.
3.
4. ?
- For the purpose of obtaining and providing legal assistance for the client
The Attorney-Client Privilege
1.
2.
3.
4.
- A communication
- Between privileged persons
- In Confidence
- for the purpose of obtaining or providing legal assistance for the client
_______ _____ _______ Defined: In the law of evidence, a client’s privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications between the client and his or her attorney. Such privilege protects communications between attorney and client that are made for the purpose of furnishing or obtaining professional legal advice or assistance. That privilege that permits an attorney to refuse to testify as to communications from the client. It belongs to the client, not the attorney, and hence only the client may waive it.
Attorney-Client Privilege
Attorney Client Privilege Defined: In the law of evidence, a ______ ________ to refuse to disclose, and to prevent any other person from disclosing, confidential communications between the client and his or her attorney. Such privilege protects communications between attorney and client that are made for the purpose of furnishing or obtaining professional legal advice or assistance. That privilege that permits an attorney to refuse to testify as to communications from the client. It belongs to the client, not the attorney, and hence only the client may waive it.
client’s privilege
Attorney Client Privilege Defined: In the law of evidence, a client’s privilege to _____ ____ ______, and to prevent any other person from disclosing, confidential communications between the client and his or her attorney. Such privilege protects communications between attorney and client that are made for the purpose of furnishing or obtaining professional legal advice or assistance. That privilege that permits an attorney to refuse to testify as to communications from the client. It belongs to the client, not the attorney, and hence only the client may waive it.
refuse to disclose
Attorney Client Privilege Defined: In the law of evidence, a client’s privilege to refuse to disclose, and to _______ any other person from disclosing, confidential communications between the client and his or her attorney. Such privilege protects communications between attorney and client that are made for the purpose of furnishing or obtaining professional legal advice or assistance. That privilege that permits an attorney to refuse to testify as to communications from the client. It belongs to the client, not the attorney, and hence only the client may waive it.
prevent
Attorney Client Privilege Defined: In the law of evidence, a client’s privilege to refuse to disclose, and to prevent any other person from disclosing, _______ ________ between the client and his or her attorney. Such privilege protects communications between attorney and client that are made for the purpose of furnishing or obtaining professional legal advice or assistance. That privilege that permits an attorney to refuse to testify as to communications from the client. It belongs to the client, not the attorney, and hence only the client may waive it.
confidential communications
Attorney Client Privilege Defined: In the law of evidence, a client’s privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications between the _______ and his or her _______. Such privilege protects communications between attorney and client that are made for the purpose of furnishing or obtaining professional legal advice or assistance. That privilege that permits an attorney to refuse to testify as to communications from the client. It belongs to the client, not the attorney, and hence only the client may waive it.
client
attorney
Attorney Client Privilege Defined: In the law of evidence, a client’s privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications between the client and his or her attorney. Such privilege protects communications between attorney and client that are made for the purpose of furnishing or obtaining professional legal advice or assistance. That privilege that permits an attorney to refuse to testify as to communications from the client. It belongs to the _____, not the ________ , and hence only the _____ ____ _____ it.
client
attorney
client may waive
The client may _____ ____ ______ directly or by disclosure of the information communicated. Unless waived, the attorney- client privilege continues indefinitely, even after the lawyer’s representation is terminated. The privilege generally survives the client’s death.
waive the privilege
The client may waive the privilege ______ or by ________ of the ______ ________. Unless waived, the attorney- client privilege continues indefinitely, even after the lawyer’s representation is terminated. The privilege generally survives the client’s death.
directly
disclosure
information communicated
The client may waive the privilege directly or by disclosure of the information communicated. Unless _______, the attorney- client privilege ________ ________, even after the lawyer’s representation is terminated. The privilege generally survives the client’s death.
waived
continues indefinitely
The attorney-client privilege generally survives the client’s ______.
death
The attorney-client privilege applies to ________ not _______.
communications
objects
The communication must be _________ to be _______ to be privileged
intended
confidential
A communication made in the presence of a _____ _______ is generally not privileged.
third party
A communication made in the presence of a third party is generally not _______.
privileged
However, a communication overheard by a third-party is privileged if the communication was made with the ________ ________ that it was being made in confidence
reasonable belief
However, a communication overheard by a _____ ______ is ________ if the communication was made with the reasonable belief that it was being made in confidence
third-party
privileged
A communication made in the presence of or by a representative of the client or the lawyer __________________________.
does not destroy the attorney-client privilege.
It’s an exception to the rule of access to evidence
Attorney-Client Privilege
Must be asserted by the client or by the attorney (under an agency theory)
Attorney-Client Privilege
Generally, must be asserted with specificity and in such a way that an opposing party may assess the basis for the privilege (i.e., privilege log)
Attorney-Client Privilege
Generally, must be asserted with specificity and in such a way that an opposing party may assess the basis for the privilege (i.e., _____ ______)
privilege log
The party asserting privilege has the ______ to ______ it.
burden to prove
Courts may engage in an ___________ review to determine whether the privilege is applicable.
in-camera
Courts may engage in an in-camera review to determine whether the privilege is applicable.
Attorney-Client Privilege
Failure to ______ ____ _____ may constitute a waiver, either a limited waiver or a blanket waiver!
assert the privilege
Courts will generally construe the privilege narrowly.
Attorney-Client Privilege
Courts will generally construe the privilege _______.
narrowly
FED. R. EVID. 501.
The privilege of a witness, person, government, State, pr political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege shall be determined in accordance with State law. !!
!!
Fed. R. Civ. P. 26(b)(1)
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. !!
!!
_______ ______ _______: Multiple parties and multiple lawyers – each party having separate counsel. The common interest doctrine treats all lawyers and clients pursuing a common legal interest as a single attorney-client unit where the pooling of information remains privileged or confidential. Agreement is always a good idea!
Common Interest Doctrine
When in doubt, claim the privilege for your client if you are asked to disclose. The court will gladly disabuse you of any incorrect notion you have with regard thereto. !!
!!
A statement made to a lawyer that is not about _______ ______ or _______ ______ _______ by the client is not privileged.
legal advice
services sought
- Fact of employment
- Identity of the client
- Fee arrangements for the representation
A statement made to a lawyer that is not about legal advice or services sought by the client is not privileged.
A statement made to a lawyer that is not about legal advice or services sought by the client is not privileged.
- Fact of employment
- Identity of the client
- Fee arrangements for the representation
If providing such information would divulge a confidential communication or incriminate the client, then it may be ________.
protected
The Attorney-Client Privilege does not protect the disclosure of the ________ ______. A client cannot be compelled to answer the question “What did you say to your lawyer?” but cannot refuse to reveal a fact within her knowledge merely because she told that fact to her lawyer.
underlaying facts
The Attorney-Client Privilege does not protect the disclosure of the underlying facts. A client cannot be compelled to answer the question “____________________?” but cannot refuse to reveal a fact within her knowledge merely because she told that fact to her lawyer.
What did you say to your lawyer
The Attorney-Client Privilege does not protect the disclosure of the underlying facts. A client cannot be compelled to answer the question “What did you say to your lawyer?” but cannot refuse to reveal a fact within her __________ merely because she told that fact to her lawyer.
knowledge
_____ ______ ______ is a product of civil procedure.
work product immunity
The Attorney-Client Privilege and Work Product Immunity _____ ______ _______ of client confidential material.
bar compelled disclosure
The Attorney-Client Privilege and Work Product Immunity bar compelled disclosure of ______ ________ _______.
client-confidential material
Documents prepared by or for a party or a party’s attorney in ________ of ________, including summaries of or notes regarding a witness’s statement, are protected under the work-product doctrine.
anticipation of litigation
Documents prepared by or for a party or a party’s attorney in anticipation of litigation, including summaries of or notes regarding a witness’s statement, are ___________ under the _____ ______ _______.
protected
work-product doctrine
_________ _____ _______: encompasses all materials created in anticipation of litigation that contain facts related to the case. Ordinary work product can consist of facts reflected in tangible documents, recordings, videos, etc., witness statements or reports, and notes or memoranda.
Ordinary Work Product
Ordinary Work Product: encompasses all materials created in _______ ____ ________ that contain facts related to the case. Ordinary work product can consist of facts reflected in tangible documents, recordings, videos, etc., witness statements or reports, and notes or memoranda.
anticipation of litigaiton
Ordinary Work Product: encompasses all materials created in anticipation of litigation that contain facts related to the case. ______ _____ _______ can consist of facts reflected in tangible documents, recordings, videos, etc., witness statements or reports, and notes or memoranda.
Ordinary Work Product
Ordinary Work Product: encompasses all materials created in anticipation of litigation that contain facts related to the case. Ordinary work product can consist of facts reflected in _______ _______, _______, _______, etc., witness statements or reports, and notes or memoranda.
tangible documents
recordings
videos
In civil cases, _______ _____ ______ is generally subject to discovery only if the party seeking disclosure (1) demonstrates a substantial need for the information and (ii) cannot obtain the information by any other means without undue hardship.
ordinary work product
In civil cases, ordinary work product is generally subject to discovery only if the party seeking disclosure (1) demonstrates a _______ _______ for the ________ and (ii) cannot obtain the information by any other means without undue hardship.
substantial need
information
In civil cases, ordinary work product is generally subject to discovery only if the party seeking disclosure (1) demonstrates a substantial need for the information and (ii) _______ _______ the information by any other means without _______ _______.
cannot obtain
undue hardship
_________ ______ _______: consists of the mental impressions, conclusions, and trial tactics of a lawyer. Opinion work product is not discoverable unless there are extraordinary circumstances.
Opinion Work Product
Opinion Work Product: consists of the ______ _________, conclusions, and trial tactics of a lawyer. Opinion work product is not discoverable unless there are extraordinary circumstances.
mental impressions
Opinion Work Product: consists of the mental impressions, __________, and trial tactics of a lawyer. Opinion work product is not discoverable unless there are extraordinary circumstances.
conclusions
Opinion Work Product: consists of the mental impressions, conclusions, and _____ _______ of a lawyer. Opinion work product is not discoverable unless there are extraordinary circumstances.
trial tactics
Opinion Work Product: consists of the mental impressions, conclusions, and trial tactics of a lawyer. _________ ______ ________ is not discoverable unless there are extraordinary circumstances.
opinion work product
Opinion Work Product: consists of the mental impressions, conclusions, and trial tactics of a lawyer. Opinion work product is not discoverable unless there are _________ _________.
extraordinary circumstances
When invoking the ______ ______ protection the attorney should object, not produce the material and describe the documents withheld in a privilege log. FRC 26(b)(5)(A). By creating a document, you are protecting the document not the fact itself. The fact itself is discoverable. Having your lawyer record it in a memo does not make the fact non-discoverable, although the memo, if made in anticipation of litigation would be.
work product
When invoking the work product protection, the attorney should object, not produce the material and describe the documents withheld in a _____ _____. FRC 26(b)(5)(A). By creating a document, you are protecting the document not the fact itself. The fact itself is discoverable. Having your lawyer record it in a memo does not make the fact non-discoverable, although the memo, if made in anticipation of litigation would be.
privilege log
When invoking the work product protection, the attorney should object, not produce the material and describe the documents withheld in a privilege log. FRC 26(b)(5)(A). By creating a document, you are protecting the document not the ______ itself. The _____ itself is discoverable. Having your lawyer record it in a memo does not make the _____ non-discoverable, although the memo, if made in anticipation of litigation would be.
fact
fact
fact
Attorney-Client Privilege Exceptions
1. ?
2.
3.
4.
- Crime Fraud Exception
Attorney-Client Privilege Exceptions
1.
2. ?
3.
4.
- Dispute with Attorney
Attorney-Client Privilege Exceptions
1.
2.
3. ?
4.
- Litigation between former joint clients of the attorney
Attorney-Client Privilege Exceptions
1.
2.
3.
4. ?
- Communications relevant to a dispute between parties who claim through the same deceased
Communications are not privileged when the client consults an attorney for advice that will serve them in the commission of a ______ or _______.
crime or fraud
The _____ _____ ______ must be asserted by a party seeking production after a party has asserted Attorney-Client Privilege.
The Crime- Fraud Exception
The Crime-Fraud Exception
The party must show:
1. ?
2.
- The client was engaged in or planning a criminal or fraudulent scheme when it sought the advice of counsel to further the scheme.
The Crime-Fraud Exception
The party must show:
1.
2. ?
- The attorney-client communications for which production is sought are sufficiently related to and were made in furtherance of the intended, or present, continuing illegality.
Does not apply to past crimes or frauds.
Crime-Fraud exception
Courts may consider in camera privileged information or may examine independent, non-privileged evidence. !!
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Using an attorney’s services in furtherance of a ______ or _______ ______ is an abuse of the attorney-client relationship, thereby causing the client to forfeit his/her right to confidentiality.
crime or fraudulent act
Using an attorney’s services in furtherance of a crime or fraudulent act is an abuse of the ______ ____ ______, thereby causing the client to forfeit his/her right to confidentiality.
attorney-client relationship
Using an attorney’s services in furtherance of a crime or fraudulent act is an abuse of the attorney-client relationship, thereby causing the client to ________ his/her right to confidentiality.
forfeit
Attorney- Client Privilege does not apply to a communication if:
Client consults lawyer for the purpose, later accomplished, of obtaining assistance to engage in crime or fraud or aiding a third person to do so OR Regardless of purpose at time of communication, uses the lawyer’s advice or other services to engage in or assist in a crime/ fraud.
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