duty of confidentiality Flashcards
what is the 1.6 duty of confidentiality?
Provides that a lawyer shall not reveal info relating to the representation of a client UNLESS the client gives informed consent, the disclosure is impliedly authored in order to carry out the representation or the disclosure is permitted by some designated exceptions
what is the acp
Is a rule of evidence, defined in each jurisdiction by common law or statute, that applies in TESTIMONIAL SETTINGS, such as when testifying, when deposed, or when documents are sought
what kind of info is protected via the duty of confidentiality (ie is it broad or narrow?)
The lawyer must keep secret a broad range of information that she learns when representing a client
how long does the duty of confidentially last
The duty of confidentiality lasts forever, even after the client dies
and the acr ends
does the duty of confidentially apply to prospective clients
yes via 1.18(b)
why is this duty of confidentiality so important
helps zealous advocacy ie the clients need to trust their lawyers
Encourages clients to make full and frank disclosures to their attorneys→ Enables attorneys to provide more effective representation→ Effective representation is essential to our legal system.
Any information relating to the representation of the client is confidential regardless of what?
The SOURCE of the info (not just from the client)
whether the info is spoken or written
Whether its covered under A/C Privilege
whether the client did or did not ask lawuer to not blab
Whether its harmful or embarrassing to the client
we know it does not matter if the info is harmful or helpful to the client its still confidential –what about info that is helpful?
Even if the info is helpful you can’t share it, unless you have informed from client or its covered under an exception
what defines confidential client info
rst 59
what does the rst 59 comment say that is not confidential info
Generally known information!
whats a good test to live by when figuring out if something is general knowlege
If a person interested in knowing the information could obtain it only by means of special knowledge or substantial difficulty or expense, ITS NOT GENERAL KNOWLEDGE
how does the rst 59 define special knowlege
includes information about the whereabouts or identity of a person or other source from which the information can be acquired, if those facts are not themselves generally known.
examples of generally known info
Info that is accessible to the public
C tells A her address
what kind of knowlege is the following
C tells A that 15 years ago, C’s husband divorced her after she cheated on him
Depends on whether divorce records are public and if so, what info is in the record
PEOPLE V. BELGE
the one where the lawyer is repping the client in murder trial; d admitted to murders and upon the lawyer’s investigation he found it to be true but did not disclose that information and violated a public policy
Issue?
* Did the duty of confidentiality exempt attorney from criminal liability?
yes
Duty of confidentiality prevails. Effective rep (in general and esp here) requires that clients can trust attorneys to not disclose.
in the belege case, could he have discolsed what his client told him if he wanted to? (ie the one where the lawyer is repping the client in murder trial; d admitted to murders and upon the lawyer’s investigation he found it to be true but did not disclose that information)
No! It would violate his duty and gotten him in trouble with the bar
1.6 has exceptions to the duty of confidentiality – are they permissive or mandatory
permissive
if a 1.6(b) exception applies how much of that info can the lawyer disclose
only as much that is necessary to fulfill the goal of the exception
1.6(b)(1) exception
to prevent reasonably certain death or substantial bodily harm
1.6 (b)(1) to PREVENT reasonably certain death or substantial bodily harm
what does it mean for death or substantial bodily harm to be certain
Bodily harm/death is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat
what is the SC version of 1.6(b)(1) exception
it includes prevention of a CRIMINAL ACT along with committing a killing/bodily harm
Zimmerman – the case that led to the revision of the current rule we know follow
The automobile case where the D withheld info about the victims aneurysm
Could they disclose under the rule AT THE TIME: “to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm?
what about under the 1.6(b)(1) excpetion as it stands now
NOPE; could not disclose aneurysm under rule at the time
maybe under the current rule
ALTON LOGAN CASE
D logan was convicted of killing a security guard but he was innocent and the two lawyers knew it
The lawyers reped another person who confessed to the murder logan was convicted of
The lawyers, saw no exception that would allow them to reveal this info, but prepared an affidavit stating that they had gotten info through privileged sources that logan was innocent
At trial three witnesses testified to seeing logan kill the guard
They lawyers were gonna speak up if he got death but he got life instead so they didn’t say anything
If he had gotten the death penalty they would have been able to say something because it would prevent certain death
could not disclose to exonerate Logan until the client gave consent
what does 1.6(a) say
a lawyer cant reveal info related to rep of a client UNLESS
client gives informed consent
its needed in order to carry out the rep
or disclosure is allowed by one of the (b) exceptions
what does 1.6 (c) safeguard tell us
A lawyer must make reasonable efforts to protect a client’s confidential information from inadvertent or unauthorized disclosure by the lawyer and those under the lawyer’s supervision, and from unauthorized access by third parties
1.6 (c) tells us that a lawyer must take reasonable efforts to protect the clients confidential info from being leaked – how is that reasonableness defied?
via comment 18 and 19
considering such factors as the sensitivity of the client’s information, the cost of additional safeguards, and the difficulty of implementing the safeguards.
Mclure – “to the extent a lawyer reasonably believes necessary”
In this case, Carol Jones was murdered in her home, and her two children went missing.
Robert McClure, a friend of Jones, was found to have his fingerprints at the crime scene.
McClure hired Christopher Mecca to represent him. During their discussions, McClure admitted to having fantasies involving young girls and provided a map showing two possible locations where the missing children might be.
Later, McClure called Mecca and claimed that “Satan” had killed Jones, but said “Jesus” had saved the children.
Mecca believed this meant the children were still alive. In response, Mecca informed McClure that he planned to anonymously notify the police about the locations on the map, to which McClure reportedly nodded in agreement.
The issue here was whether it was reasonable that Meca believed disclosure was needed to prevent the death of the children (ie application of 1.6(b)(1))
The court gave us a test
Objective reasonableness in light of circumstances
reasonableness= connected to adequacy of investigation and sufficiency of inquiry
You have to look at the circumstances AT THE TIME OF THE DISCLOSURE
in mclure, did mecca have the informed consent from the client?
Was it informed? No! Did Not discuss all the implications – dont assume the client knows all the implications
1.6(a) tells us An attorney can reveal with the client’s informed consent– how do the rules 1.0e define informed consent
denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonable available alternatives to the proposed course of conduct
how do we know what constitutes as informed consent
Comment six to 1.0(e)
inferred vs explicit informed consent
Comment 7 to 1.0(e)
1.6(a) tells us An attorney has implied authority to disclose when appropriate to carry out the rep UNLESS what?
what is implied authority?
whats express authority
the client gives specific instructions to the contrary
Express authority= includes the authority to take any steps reasonably needed for the completion of the task
implied authority– see comment 5
what do 1.6(b)(2) and (3) deal with
EXCEPTIONS RELATING TO FINANCIAL CRIMES/FRAUD
1.6(b)(2) exceptions dealing with FINANCIAL CRIMES/FRAUD – what is it and when does it apply?
PREVENT the client from committing a crime/fraud that will harm money or property of another, if the client is USING OR HAS USED the lawyer’s services in the matter
Applies when the attorney learns about the misconduct BEFORE IT HAPPENS
1.6(b)(3) exceptions dealing with FINANCIAL CRIMES/FRAUD – what is it and when does it apply?
PREVENT, MITIGATE, or RECTIFY substantial injury to $ or property another that is reasonably certain to result or has resulted from the client’s commission of a crime/fraud in which the client has used attorney services.
Applies when the attorney learns of misconduct AFTER IT HAPPENS but where the financial loss can still be rectified/mitigated/prevented
1.6(b)(6) to comply with other law or court order
The rules permit disclosure; BUT the ‘other law’ may make the disclosure MANDATORY
1.6(b)(6) permits disclosure to comply with other law
sometimes that other law/rules may COMPEL that disclosure
what does comment 12 and 17 have to say about this?
commment 12 : Whether such a law supersedes rule 1.6 is a question of law beyond the scope of these rules
comment 17:some rules rewuire disclosure only if such disclsure would be allowed by paragraph b
1.6(b)(5): attorney self protection
To establish the lawyer’s claim/defense in a controversy between the lawyer and the client or in a criminal/civil claim (involving the A/C relationship).
Or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.
1.6(b)(5) allows for disclosure of client info in order for the attorney to establish their claim or defense in a controversy between a lawyer and the client
when is this exception triggered
upon “an assertion” of attorney wrongdoing. See comment 10.
The lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense
in a 1.6 confidietality problems what two questions do you ask
First question – is it confidential info?
Second question – does a rule 1.6(b) exception apply?
checklist for when 1.6(a) allows revaling client info
checklist for when 1.6(b) allows revaling client info
