Duty of confi Flashcards
What is a lawyer’s duty of confidentiality?
A lawyer may not:
(1) knowingly disclose
(2) confidential information or use such information
(3) to the advantage of the lawyer or a third person, such as a friend
REMEMBER: Duty of confidentiality is BROADER than the obligation to preserve atty-client privilege
What is confidential Information?
Information gained during or relating to the representation of the client, that is:
(i) Protected by the ACR;
(ii) Likely to be embarrassing or detrimental; OR
(iii) Info the client has requested to be kept confidential
What are the 7 circumstances in which you MAY disclose confidential information?
1) When PERMITTED or required by rules, law or court order
2) To obtain legal or ethical ADVICE for lawyer
You can use hypotheticals if you are discrete to protect identity of client.
3) To prevent ANYcrime
4) To prevent reasonably certain DEATH or substantial bodily harm
5) To WITHDRAW a written or oral opinion or representation given by the lawyer and reasonably believed by the lawyer still to be relied upon by the third person, where the lawyer has discovered that het opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud
6) Disclosure of information necessary to:
(i) Collect a fee
(ii) Defend self from accusation of wrongful conduct.
7) Client has provided an INFORMED consent to the disclosure OR the disclosure is impliedly authorized to advance the best interests of the client
NOTE: Lawyer who KNOWS that a person intends to lie in ct MUST take reasonable remedial measures, including, if necessary, disclosure to judge
Is the duty of confidentiality owed to PROSPECTIVE clients?
YES!
Prospective clients get the duty of confidentiality
A prospective client = a person who discusses with a lawyer the possibility of entering into a lawyer client-relationship.
EXCLUDED
(i) Person who unilaterally sends information to lawyer without expectation of client-lawyer relationship
(ii) Communicates with a lawyer for the purpose of disqualifying a lawyer from handling that matter
