Duty of Confidentiality Flashcards
Def: Duty of Confidentiality
A lawyer may not knowingly disclose confidential information, or use such information to the disadvantage of a client or for the advantage of the lawyer or a third person.
Def: Confidential Information
Information gained during or relating to the representation of a client, whatever its source, that is:
1- protected by the A/C priv; OR
2- likely to be embarrassing or detrimental to the client; OR
3- Info the client has requested to be confidential.
Exceptions to the Duty of Confidentiality: (8)
A lawyer MAY reveal confidential information in the following circumstances, to the EXTENT that the lawyer REASONABLY BELIEVES NECESSARY:
1- when permitted or required by laws, rules, or court order
2- to obtain legal or ethical advice for the lawyer (use of hypos w/ colleague is okay if discrete to protect identity of client)
3- to prevent the client from committing ANY CRIME
4- to prevent REASONABLY CERTAIN death or substantial bodily harm
5- to w/draw an opinion or representation previously given by the lawyer and REASONABLY believed by the lawyer still to be relied upon by a 3rd person, where the lawyer has discovered that the opinion/representation was based on MATERIALLY inaccurate info OR is being used to further a crime or fraud
6- to collect a fee
7- to defend the lawyer from accusation of wrongful conduct
8- client has provided informed consent OR the disclosure is IMPLIEDLY AUTHORIZED to advance the best interests of the client
Truth trumps confidentiality before a tribunal.
A lawyer who reps a client before a tribunal and who KNOWS that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding MUST take reasonable remedial measures, including, if necessary, disclosure to the tribunal. THIS RULE APPLIES EVEN IF THE LAWYER MUST REVEAL CONFIDENTIAL INFORMATION TO THE TRIBUNAL.
- ask person to correct the testimony
- warn him of consequences of perjury
- if he doesn’t correct testimony, lawyer must
NOTE: A lawyer may refuse to offer evidence, other than the testimony of a criminal defendant, that the lawyer REASONABLY BELIEVES is false. Can’t refuse criminal D right to testify, but can have him testify in narrative form.
Prospective Clients & Confidentiality
ROL- A person who discusses w/ a lawyer the possibility of forming a client-lawyer relationship w/ respect to a matter is a “prospective client” and is protected by the duty of confidentiality.
EXCEPTIONS- No confidentiality for a person who
1- communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship; OR
2- communicates with a lawyer for the purpose of disqualifying the lawyer from handling a materially adverse representation on the same or a substantially related matter
