Duty of Confidentiality Flashcards
Overall duties owed to Clients:
Duty of Confidentiality, Loyalty, Financial Responsibility, Competency
Overall Duties owed to entities other than client:
Candor/Truthfulness; Fairness; Dignity/Decorum
Duty of Confidentiality; when does it apply?
This duty applies whether or not client has asked you to keep something secret, applies even if no attorney-client relationship forms
Duty of Confidentiality disclaimer
Must be explicit saying “We have no duty to keep your shit confidential”
Duty of Confidentiality vs. Attorney-Client Privilege
Attorney-Client privilege allows client to prevent you from testifying.
Confidentiality is broader:It applies regardless of the source of the information, to anything not generally known, and to disclosures beyond the representation that could reasonably lead to information about it.
Exceptions to Confidentiality
Consent (implied or express)
Defending yourself: sued for malpractice; disciplinary actions against you; refuses to pay you so you sue for fees (can disclose necessary stuff)
Compelled by court order
minimal disclosures when moving to new firm for conflicts check
Prevent Death or substantial bodily harm
Fraud/Crimes causing financial injury (CA: EVEN FINANCIAL INJURY can’t disclose)
Substantial Bodily Harm Exception
ABA: May reveal what’s necessary to prevent act if you REASONABLY believe prevents DEATH, or SUBSTANTIAL BODILY HARM
CA: 1) If REASONABLE 2) Good faith effort to persuade client not to; 3) Inform Client of your intent to reveal his confidences
Confidentiality Disclosure: Fraud/Crimes Causing Financial Injury
ABA: Can disclose if he used your services in furtherance AND disclosure prevents or mitigates substantial financial loss
CA: Cannot disclose for financial cases.
Old client and a new matter, what can’t you use?
can’t use old info that was related to the representation to the old client’s disadvantage (unless it’s generally known now)
