Duty of Confidentiality Flashcards
Duty of Confidentiality: General Rule
Duty of confidentiality 1/6
A lawyer has a duty to maintain the confidentiality of all information relating to the representation of a client.
Duty is broader than the a/c privilege, and extends to all info conveyed between the lawyer and potential client, REGARDLESS of whether the client requested the info to be private.
When may a lawyer disclose confidential information under the ABA rule?
Duty of Confidentiality 2/6
Under the ABA, a lawyer may disclose confidential info if:
* a client consents
* lawyer is ordered by law to do so
* it’s needed to defend a legal malpractice action or in a suit to recover fees
* to prevent death or substantial bodily harm
* to prevent the client from comitting a crime or fraud that will result in substantial financial loss
* to secure legal advice about a lawyer’s compliance with ethical rules
In CA, when may a lawyer disclose confidential information?
Duty of Confidentiality 3/6
A lawyer MAY disclose confidential information:
* when client consents
* when lawyer believes disclosure will prevent a crime that will likely result in death or substantial bodily injury
Additionally, the lawyer must make a good faith attempt to counsel the client out of comittiing the crime + inform the client of the layers ability or decision to disclose the information.
- Needed to defend a malpractice action
- Lawyer is compelled by court order
Disclosure if CL is an organization
Duty of Confidentiality 4/6
When L knows that the action of a rogue officer or employee is likely to result in substantial injury to the organization, L must proceeed as is reasonably necessary to protect the best interests of the organization.
Under the ABA rules:
Reporting UP If the client is an organization and the lawyer becomes aware of a matter that violates a law or will result in substantial injury to the organization, a lawyer MUST refer the matter to the higher authorities within the organization.
Reporting Out Disclosure to an outside source is permitted after reporting up, if its necessary to prevent substantial injury to the organization.
Under the CA rules
In CA, generally one is not allowed to report to an outside source – a lawyer only has the right to withdraw from the representation.
* reporting outside is allowed when it’s necessary to prevent death or substantial bodily harm to a person.
Inadvertent Disclosure of Confidential Info
Duty of Confidentiality 5/6
A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of confidential information relating to the representation of the client
Lawyers duties if receives inadvertent disclosure of information
Duty of confidentiality 6/6
Under the ABA, a lawyer who inadvertently receives a document or ESI must promptly stop reading the document + notify the sender.
Duty applies when the lawyer knows or should know that the material was inadvertently sent.
Under both ABA and CA law – a lawyer is not required to return the documents.
