Duty of Confidentiality

Question 1

In VA, what does the scope of the duty of confidentiality include?

Answer 1

1. Things covered by the evidentiary attorney-client privilege; plus
2. Things that would be embarrassing or detrimental to the client if revealed, or things that the client has expressly requested be held in confidence.

Question 2

What is the attorney client privilege?

Answer 2

An evidentiary privilege asserted in court or other proceeding in order to protect client’s information. In general, the evidentiary privilege is created when a client or prospective client communicates to a lawyer in a way that indicates confidentiality. Must be a communication made to someone who is being consulted as a lawyer and made with confidentiality

reasonable care to avoid being overheard

Question 3

Scope of the A-C privilege when there are multiple prospective clients?

Answer 3

if meeting with the attorney collectively, there is no confidentiality amongst the clients themselves. Each can assert a privilege against the worlds, but none can prevent the other from waiving the privilege.

Absence of desire for confidentiality amongst themselves.

Question 4

What exactly does the A-C privilege cover?

Answer 4

The client’s acts of communication, not their underlying knowledge

So later in a deposition of the client, the other side might ask “What color was
the light?” and the client will have to tell the truth. But if the client was asked
“What did you tell your lawyer about the color of the light?” The lawyer can
object to the question as privileged.

Question 5

What type of lawyer observations can the A-C privilege protect?

Answer 5

Those that result directly from the client’s protected communications, so long as the lawyer does nothing to prevent other interested parties from making the same observations

e.g., the evidence in the trash. Don’t meddle with it.

Question 6

A-C privilege

Is a lawyer obligated to turn over physical evidence?

Answer 6

Yes, those objects are not protected by the privilege

Holding gun from robbery for client

Question 7

Exception to the A-C privilege? (2)

Answer 7

1. The client holds the privilege. They can waive it.
2. Communications that further future crimes/frauds (crime-fraud) (use services or advice for the commission)

Question 8

Who is the duty of confidentiality owed to?

Answer 8

1. current clients
2. former clients
3. prospective clients

Question 9

Special exam issue: what should you do if faced with a Q about the duty of confidentiality and an unsolicited electronic communication?

Answer 9

In some states, if the lawyer’s webpage has a disclaimer, then there is no duty of confidentiality. Virginia does not have an express rule about this issue. If it were to arise on an essay, you should discuss both sides of the controversy.

purpose of the rule is to foster full & free communication between lawyer and client.

Question 10

Communications from agents of an organization to the lawyer are within the evidentiary privilege, and, therefore the duty of confidentiality, if two conditions are met:

Answer 10

1. The information communicated is treated as confidential within the organization; and
2. It is communicated to the lawyer so that the lawyer can represent the organization effectively

Question 11

In the context of organizations as clients, who owns the duty?

Answer 11

The organization, not its employees or agents

Question 12

When a lawyer represents a government agency, the duty of confidentiality is balanced against…

Answer 12

public interests

Question 13

If lawyers and clients, either or, use agents to communicate, what is the effect on confidentiality?

Answer 13

No effect

Question 14

Are there VA exceptions to the duty of confidentiality?

Answer 14

Yes, some are permissive and other mandatory

Question 15

Permissive exceptions to Duty of Confidentiality?

Answer 15

Disclosure is permitted “to the extent the lawyer reasonably believes necessary”:
1. To comply with other law or a court order
2. To establish a claim or defense in a controversy between the lawyer and client
3. Information which clearly establishes that the client has, in the course of the representation, perpetrated a fraud on a third party

Question 16

Mandatory exceptions to Duty of Confidentiality?

Answer 16

A lawyer must promptly reveal:
1. The intention of a client to commit a crime reasonably certain to
result in death or substantial bodily harm to another, or substantial injury to finances or property

But whenever feasible, before revealing such information, the attorney must:
1. Advise the client of the possible legal consequences of the action;
2. Urge the client not to commit the crime; and
3. Tell the client that the attorney must reveal the client’s intention unless theclient abandons the intention.

2. Serious misconduct of another lawyer, but first must obtain client consent