Continued from the one above Flashcards
In a firm, the _____ ____ ________ applies to the entire firm, and you have free communication with the firm unless client says they do not want you discussing the information with other members in the firm. Comment 5.
duty of confidentiality
Does the duty of confidentiality apply to the entire firm?
Yes, unless the client says they do not want you discussing the information with other members in the firm.
In a firm, the duty of confidentiality applies to the entire firm, and you have free communication with the firm unless _________ says they do not want you discussing the information with other members in the firm. Comment 5.
client
Rule 1.6, Comment 16: Paragraph (b) permits disclosure only to the extent the lawyer __________ _________ the disclosure is necessary to accomplish one of the purposes specified. Where practicable, the lawyer should first seek to persuade the client to take suitable action to obviate the need for disclosure. In any case, a disclosure adverse to the client’s interest should be no greater than the lawyer reasonably believes necessary to accomplish the purpose. If the disclosure will be made in connection with a judicial proceeding, the disclosure should be made in a manner that limits access to the information to the tribunal or other persons having a need to know it and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable.
reasonably believes
Rule 1.6, Comment 16: Paragraph (b) permits disclosure only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes specified. Where practicable, the lawyer should first _______ to ________ the _______ to take suitable action to obviate the need for disclosure. In any case, a disclosure adverse to the client’s interest should be no greater than the lawyer reasonably believes necessary to accomplish the purpose. If the disclosure will be made in connection with a judicial proceeding, the disclosure should be made in a manner that limits access to the information to the tribunal or other persons having a need to know it and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable.
seek
persuade
client
Rule 1.6, Comment 16: Paragraph (b) permits disclosure only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes specified. Where practicable, the lawyer should first seek to persuade the client to take suitable action to obviate the need for disclosure. In any case, a disclosure adverse to the client’s interest should be no greater than the lawyer _________ _______ _________ to accomplish the purpose. If the disclosure will be made in connection with a judicial proceeding, the disclosure should be made in a manner that limits access to the information to the tribunal or other persons having a need to know it and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable.
reasonably believes necessary
Model Rule 1.6(b) lists situations in which the lawyer can reveal _________ _________ even though the client might prefer their confidences be kept. Comments term such disclosures as: Disclosure Adverse to the Client. All of the disclosures in 1.6(b) are permissive. You can disclose but you do not have too.
confidential information
Model Rule 1.6(b) lists situations in which the lawyer can reveal confidential information even though the client might prefer their confidences be kept. Comments term such disclosures as: Disclosure _______ to the _______. All of the disclosures in 1.6(b) are permissive. You can disclose but you do not have too.
adverse
client
Model Rule 1.6(b) lists situations in which the lawyer can reveal confidential information even though the client might prefer their confidences be kept. Comments term such disclosures as: Disclosure Adverse to the Client. All of the disclosures in 1.6(b) are __________. You can disclose but you do not have too.
permissive
These adverse disclosures vary widely from jurisdiction to jurisdiction. !!
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NOTE: MPRE – grounds to disclose adversely confidential information – step 1: talk to the client and try to convince them to do the right thing. Step 2: execute the adverse disclosure as narrowly as possible to obviate the concern. !!
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How do you decide whether to disclose?
Comment 17 Paragraph (b) ________ but does not require the disclosure of information relating to a client’s representation to accomplish the purposes specified in paragraphs (b)(1) through (b)(6).
permits
In exercising the discretion conferred by this Rule, the lawyer may consider such factors as
1. ?
2.
3.
- the nature of the lawyer’s relationship with the client and with those who might be injured by the client
In exercising the discretion conferred by this Rule, the lawyer may consider such factors as
1.
2. ?
3.
- the lawyer’s own involvement in the transaction
In exercising the discretion conferred by this Rule, the lawyer may consider such factors as
1.
2.
3. ?
- factors that may extenuate the conduct in question
Effect of a lawyer’s decision not to disclose and interaction with other rules:
A lawyer’s decision not to disclose as permitted by paragraph (b) does not violate this, Rule. Disclosure may be required by other rules.
Rule 1.6(b)(1)
Prevent Death or Substantial Bodily Harm
Prevent Death or Substantial Bodily Harm
Rule 1.6(b)(1)
Rule 1.6(b)(1) A lawyer _______ 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.
may
Rule 1.6(b)(1) A lawyer _____ _______ 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.
may reveal
Rule 1.6(b)(1) A lawyer _____ ______ _______ relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm.
may reveal information
Rule 1.6(b)(1) A lawyer _____ _____ _____ _____ _____ the representation of a client to the extent the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm.
may reveal information relating to
Rule 1.6(b)(1) A lawyer _____ _____ _____ _____ _____ ___ __________ of a client to the extent the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm.
may reveal information relating to the representation
Rule 1.6(b)(1) A lawyer may reveal information relating to the representation ____ ____ ______ to the extent the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm.
of a client
Rule 1.6(b)(1) A lawyer may reveal information relating to the representation ____ ____ ____ ___ ___ _____ the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm.
of a client to the extent
Rule 1.6(b)(1) A lawyer may reveal information relating to the representation of a client to the extent _____ ______ reasonably believes necessary to prevent reasonably certain death or substantial bodily harm.
the lawyer
Rule 1.6(b)(1) A lawyer may reveal information relating to the representation of a client to the extent the lawyer _________ _______ ________ to prevent reasonably certain death or substantial bodily harm.
reasonably believes necessary
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 ______ _______ _____ _______ or substantial bodily harm.
prevent reasonably certain death
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
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.
Rule 1.0(i) ________ _______ or ________ ________ when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.
Reasonable Belief
Reasonably Believes
Rule 1.0(i) Reasonable Belief or Reasonably Believes ______ ______ ____ _______ to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.
when used in reference
Rule 1.0(i) Reasonable Belief or Reasonably Believes when used in reference ___ ___ ______ denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.
to a lawyer
Rule 1.0(i) Reasonable Belief or Reasonably Believes when used in reference to a lawyer ______ _____ the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.
denotes that
Rule 1.0(i) Reasonable Belief or Reasonably Believes when used in reference to a lawyer denotes that the ______ ________ the matter in question and that the circumstances are such that the belief is reasonable.
lawyer believes
Rule 1.0(i) Reasonable Belief or Reasonably Believes when used in reference to a lawyer denotes that the lawyer believes the ______ ____ ______ and that the circumstances are such that the belief is reasonable.
matter in question
Rule 1.0(i) Reasonable Belief or Reasonably Believes when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the ________ ____ _____ that the belief is reasonable.
circumstances are such
Rule 1.0(i) Reasonable Belief or Reasonably Believes when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the ______ ___ _______.
belief is reasonable
Such harm is ________ ________ to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat. Comment 6.
reasonably certain
Such harm is reasonably certain to occur if it will be suffered __________ or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat. Comment 6.
imminently
Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a ______ ______ if the lawyer fails to take action necessary to eliminate the threat. Comment 6.
later date
Such harm is reasonably certain to occur if it will be suffered imminently or if there is a _______ and ______ ________ that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat. Comment 6.
present and substantial threat
Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to _______ ____ _____. Comment 6.
eliminate the threat
Rule 1.0 _________ when used in reference to degree or extent denotes a material matter of clear and weighty importance.
substantial
Rule 1.0 Substantial when used in reference to ______ or ________ denotes a material matter of clear and weighty importance.
degree or extent
Rule 1.0 Substantial when used in reference to degree or extent denotes a _______ _______ of clear and weighty importance.
material matter
Rule 1.0 Substantial when used in reference to degree or extent denotes a material matter of _______ and ________ importance.
clear and weighty
For example: A lawyer who knows that a client has accidentally discharged toxic waste into a town’s water supply MAY reveal this information to the authorities if there is a present and substantial risk that a person who drinks the water will contract a life-threatening or debilitating disease and the lawyer’s disclosure is necessary to eliminate the threat or reduce the number of victims. Comment 6. !!
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Rule 1.6(b)(1) recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent ______ _____ _____ or ______ ____ _____.
reasonably certain death or substantial bodily harm
For example: Assume that Arianna tells you that another one of her friends is so angry at Tom that she is going to kill him in the immediate future. (You are convinced the threat is real.) What can you do?
Step 1: Talk to the client and try to convince them to do the right thing.
Step 2: 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
Rule 1.6(b)(2)
Preventing Crime or Fraud
Rule 1.6(b)(2) A lawyer ______ reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interest or property of another and in furtherance of which the client has used or is using the lawyer’s services.
may
Rule 1.6(b)(2) A lawyer may ______ ________ relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interest or property of another and in furtherance of which the client has used or is using the lawyer’s services.
reveal information
Rule 1.6(b)(2) A lawyer may reveal information ______ _____ ____ _______ ____ __ _______ to the extent the lawyer reasonably believes necessary to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interest or property of another and in furtherance of which the client has used or is using the lawyer’s services.
information relating to the representation of a client
Rule 1.6(b)(2) A lawyer may reveal information relating to the representation of a client to the extent the lawyer ________ ______ _______ to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interest or property of another and in furtherance of which the client has used or is using the lawyer’s services.
reasonably believes necessary
Rule 1.6(b)(2) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to ______ ___ ______ from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interest or property of another and in furtherance of which the client has used or is using the lawyer’s services.
prevent the client
Rule 1.6(b)(2) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent the client from committing a _______ or _______ that is reasonably certain to result in substantial injury to the financial interest or property of another and in furtherance of which the client has used or is using the lawyer’s services.
crime or fraud
Rule 1.6(b)(2) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent the client from committing a crime or fraud that is _______ _______ to result in substantial injury to the financial interest or property of another and in furtherance of which the client has used or is using the lawyer’s services.
reasonably certain
Rule 1.6(b)(2) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent the client from committing a crime or fraud that is reasonably certain to result in _______ _______ to the financial interest or property of another and in furtherance of which the client has used or is using the lawyer’s services.
substantial injury
Rule 1.6(b)(2) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the ______ _______ or ________ of another and in furtherance of which the client has used or is using the lawyer’s services.
financial interest
property
Rule 1.6(b)(2) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interest or property of another and in furtherance of which the _______ ____ ______ or ______ ______ _____ _____ ______.
client has used
is using the lawyer’s services
Rule 1.0(d) _______ or ________ denotes conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive.
Fraud or Fraudulent
Rule 1.0(d) Fraud or Fraudulent denotes conduct that is _________ under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive.
fraudulent
Rule 1.0(d) Fraud or Fraudulent denotes conduct that is fraudulent under the _________ or _________ law of the applicable jurisdiction and has a purpose to deceive.
substantive
procedural
Rule 1.0(d) Fraud or Fraudulent denotes conduct that is fraudulent under the substantive or procedural law of the _______ ________ and has a purpose to deceive.
applicable jurisdiction
Rule 1.0(d) Fraud or Fraudulent denotes conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a _______ to ______.
purpose
deceive
Rule 1.0_________ when used in reference to degree or extent denotes a material matter of clear and weighty importance.
substantial
The client can prevent such disclosure by refraining from the conduct. Comment 7.
What rule?
Rule 1.6(b)(2)
Although this rule does not require the attorney to reveal the client’s misconduct, the lawyer may not counsel or assist the client in conduct the lawyer knows is criminal or fraudulent. Comment 7. See Rule 1.2(d).
What Rule?
Rule 1.6(b)(2)
Although this rule does not require the attorney to reveal the client’s misconduct, the lawyer may not counsel or assist the client in conduct the lawyer knows is _________ or __________ Comment 7. See Rule 1.2(d).
criminal or fraudulent
Although this rule does not require the attorney to reveal the client’s misconduct, the lawyer may not counsel or assist the client in conduct the lawyer knows is criminal or fraudulent. Comment 7. See Rule 1.2(d).
Lawyer’s obligation to withdraw from the representation of the client in such circumstances. See Rule 1.16. !!
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Rule 1.13(c) permits the lawyer, where the client is an organization, to revel information relating to the representation in limited circumstances. !!
!!
Focus is on reasonably certain to result in substantial injury to the _______ ______ or ________ of another. Rule 1.6(b)(2)
financial interests or property
Public Policy for exception related to crime/ fraud: 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
Public Policy for exception related to crime/ fraud: 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 forfeit his/her right to _________.
confidentiality
For Example: I hire a lawyer to represent me in “various financial matters.” I tell my new lawyer that I recently embezzled funds from LMU. I ask the lawyer to help me devise a money laundering operation for the embezzled funds. The lawyer refuses and withdraws from representing me.
May the lawyer inform the client’s employer of the embezzlement scheme?
Here, the client did not use the lawyer’s services because the lawyer refuses and withdraws from the representation. Their honesty saved them from my ability to disclose. If they lied to me and then I accidentally helped them perpetuate crime or fraud, then I could disclose. Rarely is an attorney willfully helping the client and then disclosing.
Rule 1.6(b)(3)
Preventing, Mitigating, or Rectifying Consequences of Client Crime/ Fraud
Preventing, Mitigating, or Rectifying Consequences of Client Crime/ Fraud
Rule 1.6(b)(3)
Rule 1.6(b) A lawyer _____ reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent, mitigate or rectify substantial injury to the financial interests or property 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 has used the lawyer’s services.
may
Rule 1.6(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to ______, ______, or _______, substantial injury to the financial interests or property 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 has used the lawyer’s services.
prevent
mitigate
rectify
Rule 1.6(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is ________ ______ to ______ or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services.
reasonably certain
result
Rule 1.6(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the ______ __________ of a crime or fraud in furtherance of which the client has used the lawyer’s services.
client’s commission
Rule 1.6(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent, mitigate or rectify substantial injury to the financial interests or property 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 _______ _____ ______ the _______ _____.
client has used the lawyer’s services
Rule 1.6(b)(3) addresses the situation in which the lawyer does not learn of the client’s crime or fraud until _____ ______ has been ______.
after it
consummated
The lawyer may disclose information relating to the representation to the extent necessary to enable the affected persons to prevent or mitigate reasonably certain losses or to attempt to recoup their losses.
What rule?
1.6(b)(3)
Rule 1.6(b)(3) does not apply when a person who has committed a crime or fraud _______ _______ a lawyer for representation concerning that offense.
thereafter employs
Focus is on reasonably certain to result in substantial injury to the financial interests or property of another.
What rule?
1.6(b)(3)
For Example: In working on Arianna’s divorce, you have already prepared and submitted documents relating to Arianna’s finances based on information from Arianna. Later in the case, Arianna admits that she has been hiding significant assets in offshore accounts to prevent Tom from receiving a larger settlement. You encourage Arianna to let you amend the financial documents, but she refuses. You withdraw and send an email to Tom’s counsel disaffirming any financial documents you had sent on Ariana’s behalf. There is an opportunity to rectify the financial disclosures. You have a permissive nature to disclose so Tom doesn’t get screwed in the end. Mandatory withdrawal. Not subject to discipline for withdrawing or disaffirming on A’s behalf. !!
!!
For example: Arianna explains how Bitcoin has made it easy to hide assets from her husband. You believe that failing to disclose the Bitcoin stash in interrogatory answers will amount to fraud. What would you say? Will your ability to disclose fraud help you to persuade Arianna that she should answer the questions truthfully?
Talk to Arianna about doing the right thing. Inform her of failing to disclose is fraud and I cannot participate in fraudulent conduct, and I am authorized to disclose the truth.
Shady Ariana casually mentions an unrelated sub shop venture to defraud investors of substantial sums of money. You counsel Arianna that her conduct will harm the investors, and you explain the civil and criminal consequences of her conduct. You urge her to take corrective action, but Arianna laughs and says, “I’ll take my chances.”
May you disclose?
No, because it is an unrelated matter, and the client is not communicating with the attorney to use their services to commit the crime or fraud.
Let’s Practice: Bianca, a prospective client, visits John’s office and says, I want advice on how to embezzle money and get away with it. John advises Bianca not to carry out her plan and they do not move forward with an attorney-client relationship. Bianca embezzles money from her employer, and John is subpoenaed to testify at Bianca’s criminal trial.
* Is John’s conversation with Bianca privileged?
Yes, it is confidential information. There is no Attorney-Client Privilege because crime-fraud exception, but it is confidential because he didn’t use the lawyer’s services. Rule 1.6(b)(2) and (3) only applies when lawyer’s services are used.
Rule 1.6(b)(4)
Disclosure Reasonably Necessary to Secure Legal Advice
Disclosure Reasonably Necessary to Secure Legal Advice
Rule 1.6(b)(4)
Rule 1.6(b)(4) A lawyer _____ reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to secure legal advice about the lawyer’s compliance with these Rules.
may
Rule 1.6(b)(4) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to _____ ____ _____ about the lawyer’s compliance with these Rules.
secure legal advice
Rule 1.6(b)(4) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to secure legal advice about the _______ _______ with these Rules.
lawyer’s compliance
A lawyer’s confidentiality obligations do not preclude a lawyer from ______ ______ ______ _____ about the lawyer’s personal responsibility to comply with these Rules. Comment 9.
securing confidential legal advice
In most situations, disclosing information to secure such advice will be _______ _______ for the lawyer to carry out the representation. Even when the disclosure is not impliedly authorized, paragraph (b)(4) permits such disclosure because of the importance of a lawyer’s compliance with the Rules of Professional Conduct. Comment 9.
impliedly authorized
In most situations, disclosing information to secure such advice will be impliedly authorized for the lawyer to carry out the representation. Even when the disclosure is not impliedly authorized, paragraph (b)(4) permits such disclosure because of the importance of a lawyer’s compliance with the Rules of Professional Conduct. Comment 9. !!
!!
Can share _____ ______ in order to understand the lawyer’s obligations.
confidential information
Second Opinion
If you want to get a second opinion on the ethics of the Bitcoin fraud issue, who will you talk to? What will you reveal in order to get the opinions?
Start by consulting with another attorney inside the firm who is an expert in that area. If there is not anyone, you can talk to another attorney outside of the firm.
Comments – discussion about implied authorization – end result can disclose to outside expert reason could be confusing and answer for MPRE question.
!!
!!
Implied authorization to do the things you need to do so you don’t have to get into the idea of an adverse disclosure – narrow as possible and to the extent necessary. No identifying information. !!
!!
Rule 1.6(b)(5)
Disclosure Reasonably Necessary to Collect Fee or Present a Claim or Defense by the Lawyer
Rule 1.6(b)(5): A lawyer _____ reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client
may
Rule 1.6(b)(5): A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to establish a _______ or ______ on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client
claim or defense
Rule 1.6(b)(5): A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to establish a claim or defense on behalf of the lawyer in a controversy between the ______ and the _____, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client
lawyer and the client
Rule 1.6(b)(5): A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a ________ to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client
defense
Rule 1.6(b)(5) does not require the lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding _______ to a ______ ______ who has made such an assertion. The right to defend also applies, where a proceeding has been commenced. Comment 10.
directly
third party
The lawyer’s right to respond arises when an assertion of such complicity has been made. !!
!!
Example: Arianna is salty: This attorney cost me. Fortune in my divorce! The ironic thing is that we were friends when I hired her, but we aren’t friends anymore. If you want to have coins to rub together at the end of your divorce, I highly recommend getting a different lawyer!
Your Response
I want my clients to be happy with my representation, but I refuse to lie and cheat for them, The client who wrote this review wanted to hide $10,000 in Bitcoins from her husband. I won’t be a party to fraud! I convinced her that she had to tell the truth when we answered interrogatories about assets. Sorry that this client doesn’t have her 10,000 Bitcoins to rub together, but I refuse to lie for any client.
Is this a violation?
Yes, this response is prohibited by Rule 1.6. 1.6(b)(5) – traditionally used during the course of litigation. Stretch to consider a bad review is a controversy that an attorney can reveal to this extent.
Lawyers are frequent targets of online criticism and negative reviews. ABA Model Rule of Professional Conduct 1.6(a) prohibits lawyers from disclosing information relating to any client’s representation or information that could reasonably lead to the discovery of confidential information by another. A negative online review, alone, does not meet the requirements for permissible disclosure under Model Rule 1.6(b)(5) and, even if it did, an online response would exceed any disclosure permitted under the Rule. !!
!!
Lawyers who are the subject of online criticism may request that the website or search engine host remove the information but may not disclose information relating to any client’s representation, or information that could reasonably lead to the discovery of confidential information by others. Lawyers should consider ignoring a negative post or review because responding may draw more attention to it and invite further response from an already unhappy critic. Lawyers who choose to respond online must not disclose information that relates to a client matter or that could reasonably lead to the matter. Another permissible response would be to indicate that professional considerations preclude a response. A lawyer may respond directly to a client or former client who has posted criticism of the lawyer online but must not disclose information relating to the client’s representation online. !!
!!
A lawyer entitled to a fee is permitted by paragraph (b)(5) to prove the services rendered in an action to collect it. This aspect of the rule expresses the principle that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary. !!
!!
Remember distinction between attorney-client privileged information and confidential information 1.6(a). Lawyer must take steps to limit disclosure of client information if someone (generally the government) seeks to compel disclosure. If lawyer’s efforts to prevent disclosure fail, lawyer should disclose information in a manner that protects the _______ _______ to the extent possible.
client’s interests
Rule 1.6(b)(6)
Disclosure Required by Law or Court Order
Disclosure Required by Law or Court Order
Rule 1.6(b)(6)
Rule 1.6(b) A lawyer _____ reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to comply with other law or a court order.
may
Rule 1.6(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to comply with ____ ______or a ____ _____.
other law
court order
____ _____ may require that a lawyer disclose information about a client. Whether such law supersedes Rule 1.6 is a question of law beyond the scope of these Rules. When disclosure of information relating to the representation appears to be required by other law, the lawyer must discuss the matter with the client to the extent required by Rule 1.4. If, however, the other law supersedes this Rule and requires disclosure, paragraph (b)(6) permits the lawyer to make such disclosures as are necessary to comply with the law. Comment 12.
other law
A lawyer may be ordered to reveal information relating to the representation of a client by a court or by another tribunal or governmental entity claiming authority pursuant to other law to compel the disclosure. Absent informed consent of the client to do otherwise, the lawyer should assert on behalf of the client all nonfrivolous claims that the order is not authorized by other law or that the information sought is protected against disclosure by the attorney-client privilege or other applicable law. Comment 15.
!!
!!
In the event of an adverse ruling, the lawyer must consult with the client about the possibility to appeal to the extent required by Rule 1.4. Unless review is sought, however, paragraph (b)(6) permits the lawyer to comply with the court’s order. Comment 15. !!
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Rule 1.6(b)(7)
Disclosure to Detect and Resolve Conflicts
Rule 1.6(b)(7): A lawyer _____ reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.
may
Rule 1.6(b)(7): A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to detect and resolve _____ ____ _____ arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.
conflicts of interest
Rule 1.6(b)(7): A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the _____ ____ _______ or otherwise prejudice the client.
attorney-client privilege
New Comment 13 – Can disclose limited information once substantive discussions of new employment, merger, etc. have occurred.
New Comment 14 – Information disclosed can be used only to address the conflict issue
What rule?
Rule 1.6(b)(7)
Rule 1.6 (c): A lawyer shall make reasonable efforts to prevent the _________ or ______ _______ of, or unauthorized access to, information relating to the representation of a client.
inadvertent
unauthorized disclosure
_________ ________ is when you disclose information you are not supposed too.
inadvertent disclosure
Rule 1.6. Confidentiality of Information, comment 18
The unauthorized access to, or the inadvertent or unauthorized disclosure of, information relating to the representation of a client does not constitute a violation of paragraph (c) if the lawyer has made reasonable efforts to prevent the access or disclosure. Factors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to, the
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- sensitivity of the information
Rule 1.6. Confidentiality of Information, comment 18
The unauthorized access to, or the inadvertent or unauthorized disclosure of, information relating to the representation of a client does not constitute a violation of paragraph (c) if the lawyer has made reasonable efforts to prevent the access or disclosure. Factors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to, the
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- likelihood of disclosure if additional safeguards are not employed
Rule 1.6. Confidentiality of Information, comment 18
The unauthorized access to, or the inadvertent or unauthorized disclosure of, information relating to the representation of a client does not constitute a violation of paragraph (c) if the lawyer has made reasonable efforts to prevent the access or disclosure. Factors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to, the
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- the cost of employing additional safeguards
Rule 1.6. Confidentiality of Information, comment 18
The unauthorized access to, or the inadvertent or unauthorized disclosure of, information relating to the representation of a client does not constitute a violation of paragraph (c) if the lawyer has made reasonable efforts to prevent the access or disclosure. Factors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to, the
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- the difficulty of implementing the safeguards
Rule 1.6. Confidentiality of Information, comment 18
The unauthorized access to, or the inadvertent or unauthorized disclosure of, information relating to the representation of a client does not constitute a violation of paragraph (c) if the lawyer has made reasonable efforts to prevent the access or disclosure. Factors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to, the
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- the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use.)
- Took reasonable steps to prevent disclosure
- Promptly took reasonable steps to rectify the error
Inadvertent Disclosure
(B) Information Procured. If information procured in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved. Fed R. Civ. P. 26(b)(5)(B).
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A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender. ABA 4.4(b). – All you are required to do under the MRPC. !!
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Inadvertent Disclosure in Federal Court
Inadvertent Disclosure. When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if:
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- the disclosure is inadvertent
Inadvertent Disclosure in Federal Court
Inadvertent Disclosure. When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if:
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- The holder of the privilege or protection took reasonable steps to prevent disclosure and
Inadvertent Disclosure in Federal Court
Inadvertent Disclosure. When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if:
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- The holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil procedure 26 (b)(5)(B). Federal Rule Evidence 502(b)
A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender !!
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Whether the lawyer is required to take additional steps, such as returning the document or electronically stored information, is a matter of law beyond the scope of these Rules, as is the question of whether the privileged status of a document or electronically stored information has been waived. Comment 2 Rule 4.4(b) !!
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Some lawyers may choose to return a document or delete electronically stored information unread, for example, when the lawyer learns before receiving it that it was inadvertently sent. Where a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document or delete electronically stored information is a matter of professional judgment ordinarily reserved to the lawyer. See Rules 1.2 and 1.4. Comment 3 Rule 4.4(b) !!
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A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender. ABA 4.4(b).
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Formal Ethics Opinion 11-459:
Duty to Protect the Confidentiality of E-mail Communications
A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications.
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______ ____ _____ – Under Federal Rules of Evidence 502(d), a claw back agreement can ensure that accidental disclosure does not constitute waiver of privilege in the current case or future case.
Prevention of Waiver
________ _______ It reduces the need for exhaustive privilege reviews before production, making discovery faster and less expensive.
Efficient Discovery
______ ________ If incorporated into a protective order and approved by the court, it can provide additional enforceability.
Court Approval
_______ _____ _______ The agreement typically outlines how mistakenly produced documents should be handled, including notification and return/ destruction protocols.
scope and procedure
