Duty of Confidentiality

Question 1

What is a lawyer’s duty of confidentiality?

Answer 1

A lawyer may not knowingly disclose confidential information or use such information to the advantage of the lawyer or a third person, such as a friend

REMEMBER: The duty of confidentiality is BROADER than the obligation to preserve attorney-client privilege

Question 2

What is confidential Information?

Answer 2

Confidential information consists of information gained during or relating to the representation of the client, that is:

- Protected by the attorney-client privilege;
- Likely to be embarassing or detrimental; OR
- Information the client has requested to be kept confidential

Question 3

Under what circumstances MAY you disclose confidential information?

Answer 3

1) When permitted or required by rules, law or court order
2) To obtain legal or ethical advice for lawyer. You can use hypotheticals if you are discrete to protect identity of client.
3) To prevent ANYcrime
4) To prevent reasonably certain death or substantial bodily harm
5) To withdraw a written or oral opinion or representation given by the lawyer and reasonably believed by the lawyer still to be relied upon by the third person, where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud
6) Disclosure of information necessary to collect a fee or defend self from accusation of wrongful conduct.
7) Client has provided an INFORMED consent to the disclosure OR the disclosure is impliedly authorized to advance the best interests of the client

** NOTE: a lawyers who KNOWS that a person intends to lie in court MUST take reasonable remedial measures, including, if necessary, disclosure to judge

Question 4

Is the duty of confidentiality owed to PROSPECTIVE clients?

Answer 4

YES! Prospective clients get the duty of confidentiality

A prospective client = a person who discusses with a lawyer the possibility of entering into a lawyer client-relationship.

Prospective client does NOT include: 1) Person who unilaterally sends information to lawyer without expectation of client-lawyer relationship; or
2) Communicates with a lawyer for the purpose of disqualifying a lawyer from handling that matter