Duty of Confidentiality Flashcards
What does A/C Privilege protect?
- A communication
- made between privileged persons
- in confidence
- for the purpose of obtaining or providing legal assistance for the client
Work Product Doctrine
A common law creation, now codified in FRCP 26b3. Protects against disclosure of materials prepared by a party or the party’s agent in anticipation of litigation. Opinion WP and Ordinary WP. Opinion is mental impressions, not usually discoverable.
Work Product Limitations
Party can obtain otherwise protected material(ordinary work product) by showing:(1) substantial need for the material in preparing the case, AND(2) that she is unable without undue hardship to obtain the information by other means.
Work Product and Deals
Majority Rule: Documents prepared in connection with a deal, when no litigation is anticipated, are not protected work product.* Minority Rule: Documents prepared in connection with a deal are protectedwork product when those documents reflect legal opinions
WP and A/C Privilege, Exceptions
- Putting in issue: When a party raises an issue that depends on the evaluation of legal opinions(e.g., malicious prosecution, abuse of process, bad faith litigation)
- Experts
A/C and WP Difference
A/C Privilege
An evidentiary rule that precludes another party in
litigation from asking either the client or the lawyer what either has communicated in confidence
WP Doctrine
A rule of evidence that provides a more limited privilege for materials prepared by a party, or the agent of a party, in anticipation of litigation
Both durations last forever unless waived
WP Question Strategy
- Start with the definition of work product* Is this material?* Prepared by the party, or the party’s agent?* In anticipation of litigation?
- If so, is this ordinary or opinion WP?
- If ordinary, has the requesting party met the burden of proof (substantial need; can’t obtain without undue hardship)? If opinion, almost never subject to discovery.
- Does an exception apply? (putting-in-issue; experts)
A/C Crime Fraud Exception
Withholds A/C privilege from communications with alawyer that the client intends to use in furtherance ofa crime or fraud.* Does not apply when the attorney talks his client outof committing the crime!* Does not apply when the client intends to commit thecrime but does not seek advice or informationintended to use in furtherance of the crime/fraud!* Does not apply to past crimes/frauds!
Inadvertent Disclosure
MR 4.4(b): Recipient “shall promptly notify thesender” if knows or reasonably should know that thedocument was inadvertently sentAR Rule 4.4 tracks this language
FRCP 26(b)(5): After being notified, a party mustpromptly return, sequester, or destroy the specifiedinformation and any copies it has; must not use ordisclose the information until the claim isresolved . . .
Ethical Duty of Confidentiality
“A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph
EDC May reveal when…
A lawyer may reveal information relating tothe representation of a client to the extent thelawyer reasonably believes necessary:* (1) to prevent reasonably certain death orsubstantial bodily harm
o prevent crime or fraud that is reasonablycertain to result in substantial injury to thefinancial interests or property of another and infurtherance of which the client has used or isusing the lawyer’s services
(2) to prevent crime or fraud that is reasonablycertain to result in substantial injury to thefinancial interests or property of another and infurtherance of which the client has used or isusing the lawyer’s services;
(3) to prevent, mitigate or rectify substantialinjury to the financial interests or property ofanother that is reasonably certain to result orhas resulted from the client’s commission of acrime or fraud in furtherance of which the clienthas used the lawyer’s services
4) to secure legal advice about the lawyer’scompliance with these Rules;
(5) to establish a claim or defense of the lawyer …; or
6) to comply with other law or a court order
(7) to detect and resolve conflicts of interestarising from the lawyer’s change of employmentor from changes in the composition orownership of a firm, but only if the revealedinformation would not compromise theattorney-client privilege or otherwise prejudicethe client.
Organizational Clients
If a lawyer for an organization knows that an officer,employee or other person associated with the organization isengaged in action, intends to act or refuses to act in a matterrelated to the representation that is a violation of a legalobligation to the organization, or a violation of lawthat reasonably might be imputed to the organization,and that is likely to result in substantial injury to theorganization, then the lawyer shall proceed as is reasonablynecessary in the best interest of the organization.
“the lawyer shall refer the matter tohigher authority in the organization,including, if warranted …, to the highestauthority that can act on behalf of theorganization.”* internal/up-the-ladder reporting
c): if highest authority doesn’t act,“lawyermay reveal information relating to therepresentation whether or not Rule 1.6 permitssuch disclosure, but only if and to the extentthe lawyer reasonably believes necessary toprevent substantial injury to the organization.”* outside reporting
Resignation
If the lawyer’s services are being used bythe organization to further a crime orfraud, the lawyer must resign pursuantto MR 1.2(d), which provides that a“lawyer shall not counsel a client toengage, or assist a client, in conduct thatthe lawyer knows is criminal orfraudulent.”
Sarbanes-Oxley Act and SEC Regulations
requires attorneys who appear before theSecurities and Exchange Commission “to reportevidence of a material violation of securities lawor breach of fiduciary duty … by the companyor any agent thereof, to the chief legal counselor chief executive officer of the company,” and ifthat person doesn’t “appropriately respond, tothe audit committee of the board of directors”or to the board itself.* silent on outside reporting, but up-the-ladderreporting mandatory
SEC Regulations
Lawyer may reveal to SEC “confidential information relating to therepresentation” to the extent the lawyer reasonably believesnecessary* (1) to prevent the issuer from committing a material violation offederal or state law “that is likely to cause substantial injury tothe financial interest or property of the issuer or investors”;* (2) to prevent the issuer from committing a fraud on the SEC; or* (3) to rectify the consequences of a material violation of law“that caused, or may cause, substantial injury to the financialinterest or property of the issuer or investors in the furtheranceof which the attorney’s services were used.” (RETROSPECTIVE)
