Duty of Confidentiality Flashcards
Duty of Confidentiality
- how long does it last
A lawyer must not reveal information relating to the representation of a client.
Duty of confidentiality applies to all information relating to the representation of the client regardless of when or where it was acquired, regardless of whether the client asked for it to be kept in confidence, and regardless of whether revealing it might harm or embarrass the client.
Duty of confidentiality continues to apply even after the attorney-client relationship has terminated. There are certain exceptions to this duty.
Lawyer Revealed Former Client Information
A lawyer who has formerly represented a client in a matter may not thereafter reveal information relating to the representation except as permitted or required by the Rules as with respect to a current client.
Lawyer Used Former Client Information
A lawyer who has formerly represented a client in a matter may not thereafter use information relating to the representation to the disadvantage of the former client, except as permitted or required by the Rules (e.g., relating to the confidentiality of information), or when the information has become generally known.
But if the use is not to the disadvantage of the former client, it’s allowed.
Financial Loss Exception to Confidentiality Duty
ABA Rules provide that a lawyer may disclose information relating to the representation of a client to prevent the client from committing a crime or fraud that is likely to cause substantial financial loss to a person, if the client is using or has used the lawyer’s services to commit the crime or fraud.
California does NOT recognize an exception for financial loss.
Reporting Corporation’s Violations - Internal Reporting
A lawyer who represents an organization must act in the best interest of the organization. If the lawyer learns facts that would cause a reasonable lawyer to conclude that
* someone associated with the organization is engaged in action, intends to act, or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and
* if the violation is likely to result in substantial injury to the organization,
* lawyer must proceed as is reasonably necessary in the best interest of the organization
Usually, this involves reporting the violation to a higher authority in the organization. If necessary, the lawyer must report it to the organization’s highest authority (eg. a corporation’s outside directors).
Reporting Corporation’s Violations - Outside Reporting
ABA Rules provide that if lawyer reports the violation to the organization’s highest authority, but highest authority fails to take timely, appropriate action:
* lawyer may report the relevant information to appropriate persons outside the organization, even if the information would otherwise be protected by the duty of confidentiality.
* only to the extent that the lawyer reasonably believes that reporting is necessary to prevent substantial injury to the organization
California Rules do NOT authorize outsider reporting; the lawyer is prohibited from disclosing confidential information about the violation to an outsider unless an exception to the duty of confidentiality applies.
* In certain instances, federal law will preempt this rule and outsider reporting is permitted (ex. reporting securities violations to the SEC).
Acting Competently to Preserve Confidentiality
As part of the duty of confidentiality, the ABA Rules also specifically require a lawyer to act competently to preserve confidentiality
Ex. make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation.
Attorney Client Privilege
Prevents attorney from being compelled to testify against client about confidential communications for the purpose or obtaining or providing legal advice
* ABA: never ends; survive’s client’s death
* CA: terminates when client dies and estate is settled/personal rep discharged
Exceptions (ABA and CA)
* necessary to prevent future fraud or crime
* suit between attorney and client
* joint clients (if they sue each other, info is no longer privileged)
* CA only: to prevent criminal act likely to result in death or substantial bodily harm (same as for confidentiality)
