Doodee of Confidentiality

Question 1

Types of confidentiality?

Answer 1

• Duty of Confidentiality
• Atty-client Privilege
• Work Product Doctrine
• Representation of Multiple Clients

Question 2

Duty of Confidentiality

Answer 2

Duty of confidentiality requires a lawyer to keep confidential all information provided to the lawyer for the purpose of rendering legal services w/o the consent of the client

(1) Scope of duty = all communications related to the representation
- even if client did not request atty keep the info confidential or its revelation would not harm/embarrass client
- source of info = irrelevant to this duty

(2) Timing of duty
- applies before the atty-client relationship (i.e. prospective clients) - even if an atty-client relationship is ultimately never formed
- after the atty-client relationship = applies indefinitely

Question 3

Exceptions to the Duty of Confidentiality

Answer 3

• Client expressly consents after consultation

• CA Rules = consent must be in writing
• implied consent = whatever necessary to render competent legal services

• Preventing crimes of death or substantial bodily harm
- CA Rules = good faith effort to persuade client required first

• Intent to commit fraud that will cause significant financial injury

• ABA Rules = reporting allow only if
  (a) lawyer’s services being used to perpetrate the crime/fraud; and
  (b) reporting would prevent crime or mitigate substantial financial loss
• CA Rules = no financial exceptions to confidentiality

• To establish a claim/defense

• controversy b/w lawyer & client
• defense to criminal charge/civil claim
• allegations concerning lawyer’s representation of the client

• Compelled by law, final court order, or other controlling ethical duties

Question 4

Atty-Client Privilege

Answer 4

Evidentiary Privilege - atty may not be compelled to testify about a matter falling under the privilege. This privilege prevents a ct from using subpoena power and contempt to compel the revelation of confidential information

Question 5

What is the scope of atty-client privilege?

Answer 5

Scope of privilege = only communications pertaining to legal services

Source = only communications between client or client’s representatives and the atty

Question 6

What is the timing of the atty-client privilege?

Answer 6

Timing of privilege
ABA Rules = applies indefinitely
CA Rules = terminates when estate is settled

Question 7

Exceptions to the Atty-Client Privilege

Answer 7

• Services used to commit future crime/fraud
• Allegations concerning lawyer’s representation of the client
• Litigation b/w former joint clients of lawyer
• Competency/intention of client to dispose property by will or inter vivos transfer

CA Rules: preventing crimes of death or substantial bodily harm

Question 8

Work Product Doctrine

Answer 8

Definition = work-product doctrine protects materials prepared IN ANTICIPATION of litigation from discovery by opposing counsel

ABA Rules = work produce does not have to be generated by a lawyer under ABA rules

CA Rules = work product in CA only applies to material prepared in anticipation of litigation by attys or their agents

Question 9

Representation of Multiple Clients

Answer 9

The representation of multiple clients may raise issues regarding the duty of confidentiality to each because a conflict may only arise when one client discloses something to the lawyer

When the lawyer cannot make a due disclosure to the other client regarding the conflict without violating the duty of confidentiality, the lawyer must withdraw