Duty of Confidentiality Flashcards
What are the main doctrines of confidentiality for professional responsibility?
1) Attorney Client Privilege
2) Attorney Work Product
3) Duty of Confidentiality
Lawyer-Client Privilege
The evidentiary lawyer-client privilege covers the client’s communication with a lawyer whom the client reasonably believes represents the client and only when the circumstances indicate a desire by the client for confidentiality.
1) Communication must be confidential
2) Must be for the purpose of seeking legal advice or representation [NOT CRIME/FRAUD]
Who holds/can waive the Attorney Client Privilege?
The client ONLY
What happens to the Attorney Client Privilege when there is a dispute between co-clients?
If co-clients become adverse, then confidential communications relevant for the dispute may be disclosed.
Does the attorney client privilege survive the client’s death?
[ABA][CALIFORNIA]
ABA: Yes.
CA: Diminishes once the client’s estate has settled the relevant matter.
How long does the attorney client privilege survive?
[ABA] [CALIFORINA]
ABA: Generally survives the client’s death.
CA: Terminates when the client’s estate is settled AND the personal rep is discharged.
Attorney Work Product Doctrine
Typically, work product by the attorney or anyone they hire (i.e. investigator) is not discoverable.
Further, an attorney’s mental impressions, legal conclusions, theories, etc ARE NEVER DISCOVERABLE
Exceptions to Attorney Work Product Doctrine
1) Opposing party has suffered substantial hardship and would be subjected to unfair prejudice if work product was not discoverable
2) When L is suspected of a crime or fraud
3) When there is a dispute between L and C, if relevant to C’s breach
Duty of Confidentiality
[ABA] [CALIFORNIA]
A lawyer may not reveal ANY information relating to the representation of the client.
What are exceptions to the Duty of Confidentiality?
[ABA] [CALIFORNIA]
1) Informed Consent
2) Consent implied in order to carry out representation [ABA only]
3) When permitted by the rules [ABA only]
4) When lawyer reasonably believes disclosure will prevent a crime that the lawyer reasonably believes is likely to result in the death or substantial bodily harm.
5) Prevent the client from committing a crime or fraud that is reasonably certain to cause substantial injury to the financial interests or property of another [ABA only]
ESSAY TIP: When should you discuss the Duty of Confidentiality, even if the facts do not necessarily point to a duty?
When there is a COI: Concurrent Clients!
Duty of Confidentiality: Duty to Protect Information
An attorney must act competently to prevent inadvertent or unauthorized disclosure of information relating to the representation!
What communications are protected under the Duty of Confidentiality?
ALL COMMUNICATIONS RELATED TO THE REPRESENTATION!
Includes work product, statements from third parties; even information that C has not expressly requested to be secret!
Does an attorney have a duty of confidentiality to prospective clients?
[ABA][CALIFORNIA]
Yes, when someone consults with L regarding the possibility of creating an attorney client relationship.
CA ONLY: Includes when an authorized representative meets with L.
When does an attorney NOT have a duty of confidentiality with prospective clients?
1) Prospective client did not have a good faith intention to retain L
2) After L states they are unable or unwilling to represent
3) If consult was unilaterally initiated by C, when there was no reasonable expectation to form an attorney client relationship.
