duty of confidentiality Flashcards
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 3P, such as another client or a friend
confidential info consists of info gained during or relating to representation of a client, whatever its source, that is:
- protected by atty client privilege
- likely to be embarrassing or detrimental to client
- information the client has requested to be kept confidential
duty is broader than obligation to preserve the atty client privilege, which only addresses confidential communications between atty and client for legal advice
exceptions to duty
a lawyer MAY reveal confidential info in following circumstances to the extent the lawyer reasonably believes necessary:
1) when permitted or required by law, rules, or ct order
2) to obtain legal or ethical advice for lawyer (use of hypo ok if discrete to protect identity of client)
3) to prevent client from committing crime
4) to prevent reasonably certain death or substantial bodily harm (so can disclose confidences to protect 3Ps such as children from serious risk of harm in extraordinary circumstances)
5) to withdraw a written or oral opinion or representation previously given by lawyer and reasonably believed by lawyer to still be relied upon by 3P, where lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud
6) disclosure of info necessary to collect a fee or defend self from accusation of wrongful conduct
7) client has provided informed consent to disclosure or disclosure is impliedly authorized to advance best interests of client (BUT note: if lawyer is representing a client before a tribunal and knows that client intends to engage or is engaging in or has engaged in fraudulent conduct related to the proceeding, the lawyer must take reasonable remedial measures including (if necessary) disclosure to tribunal–even if have to reveal confidential info) (note: a lawyer may refuse to offer evidence, other than the testimony of a D in a criminal matter, that lawyer reasonably believes is false)
So if client gives false testimony, ask client to correct testimony, warn client of consequences of perjury. If client doesn’t correct it, lawyer MUST correct it.
