Confidentiality & Privilege Flashcards
1) Duty of Confidentiality
2) Attorney-Client Privilege
1) Duty of Confidentiality— BROADER than the attorney-client privilege. Certain things may NOT be privileged yet still protected by the duty of confidentiality.
- ALL information learned relating to the representation must be kept in confidence.
- A lawyer owes a duty of confidentiality to prospective, current, and former clients.
Inadvertent Disclosures
- A lawyer has a duty to make reasonable efforts to prevent the inadvertent or unauthorized disclosure of (or unauthorized access to) information relating to the client’s representation.
- A lawyer may employ others to store confidential client information but the lawyer is still liable for failing to make reasonable efforts to prevent the inadvertent disclosure of or unauthorized access to such information.
- Model Rules require no special security measures to protect client information transmitted via email because email affords a reasonable expectation of privacy.
Presence of third party
- Does NOT destroy confidentiality
2) Attorney-client privilege—more LIMITED than the duty of confidentially. Applies to:
- Testimonial Communication for purposes of representation (not objects)
- Information given confidentially to attorney; and
- Information actually kept confidential
Communication
- Any expression through which a privileged person undertakes to convey information to another privileged person and any document or other record revealing such an expression.
- Words, Acts
NOT PRIVILEDGED under Attorney-Client privilege
- Crime-Fraud Exception
- Dispute with the Attorney
Inadvertent disclosure and waiver—RULE: no waiver of privilege if:
- Attorney took reasonable steps to prevent disclosure; and
- Attorney took reasonable corrective steps after the disclosure.
Presence of third party
- The test is whether the communications were made in the reasonable belief that it is being made in confidence.
- If overheard by unknown third party, still privileged
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Court Compulsion
- A court CANNOT order a lawyer to reveal information protected by Attorney-client priviledge.
- A court MAY order revelation of material protected under the ethical duty of confidentiality.
Duration
- The duty lasts FOREVER;
- it survives the death of the client and of the lawyer.
Permissive Disclosures of Confidential Information (May)
Lawyer has discretion
- The Model Rules ALLOW, but DO NOT REQUIRE disclosure under these circumstances.
Lawyer may reveal information relating to representation of client if:
1) Client gives informed consent
2) Disclosure is impliedly authorized to carry out representation or
3) Lawyer reasonably believes disclosure is necessary to:
- prevent death or substantial injury; – (L’s services NOT required)
- prevent client’s commission of crime or fraud; – (L’s services REQUIRED)
- prevent/mitigate/rectify financial injury from client’s crime or fraud – (L’s services REQUIRED)
- comply with law or court order;
- screening for conflict-of-interests
- assist lawyer in securing legal advice about compliance with ethical rules;
- establishing claim or defense
4) Education
- “The Law Professor Exception” – (cannot identify client)
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1) Client Consents
- Example 42: Conrad says to Larry Lawyer, “Advocate for me publicly. Talk to the media.”
2) Implied by the Representation
- Example 43: Conrad says to Lorraine, “Take them to court.” This will require revealing the client’s identity, as well as other confidential material within Lorraine’s firm.
- this exception does not apply to former or prospective clients.
3) To PREVENT substantial bodily INJURY or DEATH – (Lawyers services NOT required to disclose) An attorney may reveal confidential information concerning the representation of a client to the extent the attorney reasonably believes disclosure is necessary to prevent reasonably certain death or bodily harm. The attorney is NOT OBLIGATED to do so, however.
- Must be to prevent FUTURE injury or death.
- PAST, UNRELATED murders learned through the course of representation is confidential information. Lawyer shall not reveal.
4) To Prevent OR Rectify Client’s CRIME or FRAUD involving Lawyers Services – (Lawyers services are REQUIRED to disclose) Lawyer may disclose information relating to client’s representation:
To prevent
- The client’s future criminal act or fraud;
- The lawyer must believe it is necessary to prevent substantial financial harm;
to mitigate or rectify:
- Client’s completed criminal act or fraud;
- is reasonably certain to result or has resulted in substantial injury to another’s financial interests or property and
5) Controversies with Lawyers / Disciplinary Proceedings – a lawyer may disclose confidential information to the extent the lawyer reasonably believes is NECESSARY (can’t just disclose irrelevant confidential information) to:
- establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client
- establish a defense to a criminal charge or civil claim against the lawyer based on conduct in which the client was involved, OR
- respond to allegations in any proceeding concerning the lawyer’s representation of the client.
6) Court ordered disclosure
- Lawyer MUST still assert all non-frivolous claims that the information sought is protected against disclosure by the lawyer-client privilege or other applicable law before disclosure to court
7) Assist lawyer in Securing Legal Advice about Compliance with Ethical Rules
- Generally, disclosing information to obtain such advice would be impliedly authorized for the lawyer to carry out the representation.
- Even if not impliedly authorized, the Model Rules allow such disclosure
8) Necessary to screen for Conflicts
- lawyer may reveal confidential information relating to the representation of a client to the extent the lawyer reasonably believes it necessary to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the makeup or ownership of a firm,
- but ONLY IF the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.
9) Education (“The Law Professor Exception”)
- May disclose for educational purposes, so long as the client’s identity is not revealed, and the listener cannot determine who the client is
Work-Product Doctrine
Work Product Doctine – Documents prepared by/for Attorney in anticipation of litigation are protected under the attorney work-product doctrine and NOT SUBJECT TO DISCOVERY
- Facts gathered by attorney—eg, witness statements, notes & other materials
- (e.g., strategy memo, observations about client, reports on witnesses, etc.)
Exceptions—an attorney MAY be COMPELLED to reveal work product in a CIVIL suit when:
- There is a substantial need for the information; and
- No other means to gather the information without undue hardship
OPINION Work Product (Mental impressions, opinions, conclusions, Legal theories)
- Protected from discovery, REGARDLESS of another party’s need for the information or inability to otherwise obtain it.
- Discoverable only in RARE instances of compelling need—eg, to show attorney’s fraud
- Attorney’s selection or compilation of documents constitutes an attorney’s OPINION work product, even if each document in the selected compilation is itself discoverable. This is because the selection of such documents reflects the attorney’s mental impressions and legal opinions about how the evidence within the documents relates to the litigation.
Prospective Clients
Entity representation – The entity is the client, but must communicate with a representative.
- Control group—representatives (managers, board of directors, etc.)
- A lawyer representing an entity represents the entity acting through its duly authorized constituents. The lawyer owes the duties of loyalty and confidentiality to the entity.
Communications from prospective clients
- Information must be held in confidence if the lawyer INVITED communication.
- Screening is available.
Electronically Stored Information (“The Cloud”)
Electronically Stored Information (“The Cloud”)
- A lawyer is obligated to secure information to comply with the Rules.
Factors:
- Sensitivity;
- Cost; and
- Client consent.
Duty of Sole Practitioner In order to prevent neglect of client matters in the event of death or disability of a sole practitioner, the practitioner should:
- prepare a PLAN, in conformity with applicable rules, that designates another competent lawyer to review client files,
- notify each client of the lawyer’s death or disability (no consent needed), and
- determine whether there is a need for immediate protective action.
No Plan – Consent needed
- This is a PLAN for the future, if attorney has NO plan and then falls ill, the sole practitioner contingency plan exception does not apply. Therefore, the lawyer needed client consent
