Confidentiality / Attorney-Client Privilege / Corporate Privilege / Work Product Doctrine Flashcards
1
Q
Rule 1.6 – The Ethical Duty of Confidentiality
Rule 1.6(a): You shall not reveal information related to the representation of a client unless:
A
- The client gives informed consent;
- The disclosure is impliedly authorized; or,
- The disclosure is permitted by Paragraph (b)
2
Q
Rule 1.6(b)(1)
A
- You may reveal information relating to the representation of a client
- to the extent reasonably believed necessary
- to prevent reasonably certain death OR substantial bodily harm
- The Moral of the Story:
- Before you make any disclosure under the death/bodily harm exception,
- first seek to persuade your client to refrain from the harmful act
- so as to obviate the need for disclosure.
- Balancing Test:
- You must carefully balance the public policy considerations behind disclosure against your duties of loyalty and confidentiality to your client
- Disclosure is always last resort!
- Immunity from discipline: A good faith decision to warn can not be re-examined or second-guessed by disciplinary authorities
3
Q
Rule 1.6(b)(2) – Pre-Fraud / Crime
A
- You may reveal information relating to the representation of a client:
- To the extent reasonably believed necessary to prevent your client from committing a crime or fraud
- that is reasonably certain to result in substantial injury to the financial or property interests of another; and,
- in furtherance of which the client has used or is using your services.
- Policy Rationale for this Exception:
- A client who seeks to use your services to commit a crime or fraud forfeits the protection of attorney-client confidentiality
- Keep in mind that the client can prevent any disclosure simply by refraining from the wrongful conduct
4
Q
Rule 1.6(b)(3) – Post Fraud / Crime
A
- You may reveal information relating to the representation of a client:
- To the extent you believe reasonably necessary to prevent, mitigate or rectify
- substantial injury to the financial or property interests of another
- that is reasonably certain to result, or has resulted, from the client’s commission of a crime or fraud
- in furtherance of which the client used your services
5
Q
Rule 1.6(b)(4) – Disclosure to Obtain Ethics Advice
A
- You may reveal information relating to the representation of a client
- to the extent you reasonably believe necessary
- to secure legal advice about your compliance with the Rules of Professional Conduct
6
Q
Rule 1.6(b)(5) – Disclosure to Defend Allegation of Wrongdoing/Collect a Fee
A
- You may reveal information related to the representation of a client to the extent you reasonably believe necessary to:
- Clear yourself from an allegation of wrongdoing;
- Collect a fee
7
Q
Rule 1.6(b)(6) – Disclosure to Comply with Other Law
A
- You may reveal information relating the representation of a client
- to the extent you reasonably believe necessary
- to comply with other law or court order.
8
Q
Rule 1.6(b)(7)
A
- You may reveal information to the extent reasonably necessary to:
- Detect and resolve COI arising from changes in employment/law firm composition
- but only to the extent it won’t compromise confidentiality or prejudice the client.
- Scenarios for (b)(7):
- Lawyer considering joining a new firm
- Two firms considering a merger
- Lawyer considering the purchase of a law practice
- Prerequisites for (b)(7):
- Any such disclosures only appropriate in connection with substantive, serious discussions of affiliation.
- Disclosures must be limited. E.G.:
- I.D. of persons/entities involved
- Summary of the general issues
- Whether the matter is still ongoing
- THE DISCLOSURE IS PROHIBITED IF IT WOULD COMPROMISE THE A/C PRIVILEGE OR PREJUDICE THE CLIENT
9
Q
Rule 1.6(c)
A
- A lawyer must make reasonable efforts
- to prevent the inadvertent or unauthorized disclosure of,
- or unauthorized access to,
- information relating to the representation of a client
10
Q
Rule 1.18 – The Prospective Client Rule
A
- Whether you can represent someone against a prospective client depends on whether you are in possession of any confidential information of that person that can be used against them in the matter.
- If the answer is yes, you can not represent the other side absent the prospective client’s consent
- The rule treats prospective clients like former clients: A lawyer that has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit
11
Q
Attorney – Client Privilege
A
- It is an evidentiary privilege which means that it only arises in the context of litigation.
- If there is no litigation in progress, the a/c privilege is never applicable.
- Applies only when:
- The lawyer is being asked to reveal a confidence while testifying; or,
- The lawyer is asked to surrender a document or other physical object through force of a subpoena
- Source must be the Client:
- To be protected, the information must originate from a confidential communication with the client/client’s agent, not third persons
12
Q
Requirement for a Confidential Setting:
A
- In order for the privilege to attach, communications for the client must occur in a confidential setting.
- Non-clients can not be present unless an agent for either the lawyer or the client
13
Q
Crime – Fraud Exception:
A
- The privilege is forfeited
- where the client sought or obtained your services
- to enable or aid in the planning or commission of a crime or a fraud
14
Q
The Ethical Duty is Very Broad:
A
- It renders confidential ALL information obtained in the course of the representation regardless of the source
15
Q
The Privilege is Very Narrow:
A
- It only protects communications between the lawyer and the client; and,
- It can only be asserted in court proceedings
