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Professional Responsibility > DUTY OF CONFIDENTIALITY > Flashcards

DUTY OF CONFIDENTIALITY Flashcards

1
Q

Rules

A

o R.1.6 CONFIDENTIALITY OF INFORMATION
o R.1.8(b) CONFLICT OF INTEREST: CURRENT CLIENTS: SPECIFIC RULES
o R.4.1(b) TRUTHFULNESS IN STATEMENTS TO OTHERS
o FRE.Proposed Rule 503 LAWYER-CLIENT PRIVILEGE
o FRCP.26(b)(3) DUTY TO DISCLOSE; GENERAL PROVISIONS GOVERNING DISCOVERY // DISCOVERY SCOPE AND LIMITS: TRIAL PREPARATION MATERIALS

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2
Q

R.1.6 CONFIDENTIALITY OF INFORMATION – rule

A

Precludes an attorney from

  • voluntarily disclosing information OR
  • using information to client’s detriment
  • RELATING TO THE REPRESENTATION OF THE CLIENT
  • Regardless of its source

R.1.6 CONFIDENTIALITY OF INFORMATION

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3
Q

R.1.6 CONFIDENTIALITY OF INFORMATION – key takeaways

A
  • (almost always) not required to reveal confidence under this rule
  • language of the rule = “may” = permissive
    (= MAY reveal info TO THE EXTENT the lawyer REASONABLY believes NECESSARY)
  • no greater than lawyer reasonably believes necessary to accomplish purpose (CMT 16)

R.1.6 CONFIDENTIALITY OF INFORMATION

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4
Q

2 exemptions + 7 exceptions to R.1.6 CONFIDENTIALITY OF INFORMATION

A
  • can always reveal if
    1. informed consent
    2. impliedly authorized in the course of representation
  • even if not consented/authorized, lawyer may reveal confidence IF
    1. prevent reasonably certain death/substantial bodily harm
    2. prevent client from committing crime/fraud reasonably certain to result in substantial injury to financial interests/property of another AND in furtherance of which the client has used/is using the lawyer’s services
    3. to prevent/mitigate/rectify substantial injury to financial interests or property/another reasonably certain to result/has resulted from the client’s commission of a crime/fraud in furtherance of which the client has used the lawyer’s services
    4. secure legal advice about the lawyer’s compliance with these Rules
    5. to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;
    6. to comply with other law or a court order; or
    7. to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.

R.1.6 CONFIDENTIALITY OF INFORMATION

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5
Q

Establishing claim/defense/response exception – 3 scenarios

A
  1. to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client
  2. to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved
  3. to respond to allegations (even before a suit is filed) in any proceeding concerning the lawyer’s representation of the client (only to the extent necessary to prosecute or defend)

R.1.6 CONFIDENTIALITY OF INFORMATION

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6
Q

Establishing claim/defense/response exception – 5 examples

A
  1. client sues lawyer for malpractice
  2. lawyer sues client for fees
  3. third party sues lawyer for committing fraud with client
  4. disciplinary proceeding against lawyer
  5. lawyer charged with crime arising out of representation

CMT 10, R.1.6 CONFIDENTIALITY OF INFORMATION

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7
Q

Obligation to reveal R.1.6 information

A

Never obligated to reveal R.1.6 information
EXCEPT to remedy perjury/fraud on the court

R.1.6 CONFIDENTIALITY OF INFORMATION

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8
Q

Compliance with court order/law exception – analysis

A
  • first issue is whether other law supersede (CMT 12)
    (but that issue = question of law beyond scope of Rules)
  • should appeal/object to court order as much as possible
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9
Q

Effect of termination of lawyer-client information on duty of confidentiality

A

Duty continues after representation terminates

R.1.6 CONFIDENTIALITY OF INFORMATION

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10
Q

Effect of death of client on duty of confidentiality

A

Duty continues after client dies

R.1.6 CONFIDENTIALITY OF INFORMATION

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11
Q

Prevention of reasonably certain death/substantial bodily harm exception – “reasonably certain to occur”

A

=

  • 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

EXAMPLE = Thus, a lawyer who knows that a client has accidentally discharged toxic waste into a town’s water supply may reveal this information to the authorities if there is a present and substantial risk that a person who drinks the water will contract a life-threatening or debilitating disease and the lawyer’s disclosure is necessary to eliminate the threat or reduce the number of victims.

CMT 6, R.1.6 CONFIDENTIALITY OF INFORMATION

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12
Q

Prevention of reasonably certain death/substantial bodily harm exception – does there need to be a crime?

A

NO

R.1.6 CONFIDENTIALITY OF INFORMATION

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13
Q

Securing legal advice about compliance exception – 2 key factors

A

2 key factors to determine proper scope of disclosure:

  1. Only disclose to extent necessary to obtain advice(no greater detail than you have to)
  2. Form of hypothetical whenever possible

R.1.6 CONFIDENTIALITY OF INFORMATION

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14
Q

impliedly authorized disclosure – example

A

lawyer admits a fact in open court that is beyond dispute or the lawyer makes a statement of fact in settlement negotiations

R.1.6 CONFIDENTIALITY OF INFORMATION

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15
Q

Attorney-client privilege – rule

A

evidentiary rule prevents compelled disclosure by an attorney of confidential communications with a client for the purpose of seeking legal advice

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16
Q

Attorney-client privilege – compelled disclosure examples

A
  • discovery
  • police interrogation
  • trial testimony
  • grand jury testimony
17
Q

Attorney-client privilege – application

A
  • applies only to communications between a client/ her representatives and a lawyer/her representatives)
  • applies only when legal advice (as opposed to business or personal advice) is sought
  • does not apply to information obtained from third parties or from public records
18
Q

Attorney-client privilege – exceptions

A
  1. if the client seeks legal advice related to an ongoing crime or fraud
  2. there is no privilege among joint clients (but the privilege remains as to outsiders)
  3. the client waives the privilege
  4. the communications were not confidential when made (discussions took place in a crowded store) or the client has since made them public
19
Q

6 differences between R.1.6 and attorney-client privilege

A
  1. All attorney-client information is protected by R.1.6, but not all R.1.6 information is protected by the attorney-client privilege (AKA the attorney-client privilege is a small subset of R.1.6)
  2. The attorney-client privilege applies only to information the attorney gets from the client (or the client’s representatives)
  3. The attorney-client privilege protects against compelled disclosure; Rule 1.6 prohibits voluntary disclosure by the lawyer
  4. R.1.6 is not a proper objection at trial or in discovery, but the attorney-client privilege is a proper objection
  5. Both rules continue after the client dies (although there is an exception to the attorney-client privilege in cases of testamentary dispositions) or the representation terminates
  6. Ethical duty to protect confidences under R.1.6 is BROADER IN SCOPE but attorney-client privilege is STRONGER
20
Q

main sources of confidentiality obligation

A
  1. Evidence = attorney-client privilege
  2. Civil procedure = work-product doctrine
  3. Law of agency = agent’s fiduciary obligations
  4. Rules of professional conduct = R.1.6 CONFIDENTIALITY OF INFORMATION
21
Q

R.1.6 examples for informed consent

A

SEE EXAMPLES IN CMT 5

22
Q

R.1.6 “hypothetical” exception

A
  • Permits you to talk to other lawyers and nonlawyers of firm unless expressly prohibited (AKA it is impliedly authorized)
  • Must talk “hypothetically”
  • Cannot reveal so much that 3P would be reasonably able to ascertain ID

CMT 4, R.1.6 CONFIDENTIALITY OF INFORMATION

23
Q

R.1.6 limits and application

A
  • Duty not limited to info client tells you
  • Covers info learned before deciding to representation (R.1.18(b))
  • Doesn’t terminate with the representation (R.1.9(c)(2), CMT 1, CMT 3)
24
Q

R.1.6 limits and application

A

Duty not limited to info client tells you

R.1.6 CONFIDENTIALITY OF INFORMATION

25
Q

Attorney-client privilege for corporations // UPJOHN CASE

A

Previous test = control group test
- Only high-level VPs are privileged

New test = subject matter test
- Communications between lawyers and low-level employees with knowledge of crime/fraud = privilege

26
Q

5 common exceptions to attorney-client privilege

A
  1. If client seeks assistance with crime or fraud
  2. Waiver by client
  3. Putting privileged communication into issue)
  4. Joint clients
  5. Probate cases
27
Q

putting privileged communications into issue exception to attorney-client privilege

A

lawsuits involving breach of duty by lawyer or client

28
Q

joint client exception to attorney-client privilege

A

considered common clients w/ client privilege = not confidential from other joint client

29
Q

probate cases exception to attorney-client privilege

A

disclosure to prove the will is true, etc.

30
Q

R.1.6 use of confidential client info

A
  • Rules regulate not just when to disclose but also HOW disclosed info is used
  • SEE CMT 5, R.1.8(b)
  • Can’t use info to the disadvantage of client UNLESS client give informed consent

R1.6 CONFIDENTIALITY OF INFORMATION

31
Q

R.1.6 client fraud and crimes that cause financial harm – rules

A

R.1.6(b)(2) = present/future crime/fraud

R.1.6(b)(3) = past crime/fraud

32
Q

R.1.6 client fraud and crimes that cause financial harm – key takeaways

A
  • Still PERMISSIBLE, neither mandates disclosure

- Major distinction from R.1.6(b)(1) = client is using or used lawyer’s services in furtherance of crime/fraud

33
Q

R.1.6 client fraud and crimes that cause financial harm – disclosure

A
  • Disclosure not always permissible, but usually is
  • Read in conjunction with 2 other rules = limited circumstance when “shall” disclose
    o R.1.2(d) = lawyer shall not counsel client to engage or assist in crime/fraud
    o R.4.1(b) = in course of representing client, lawyer shall not knowingly fail to disclose material fact to 3P when disclosure is necessary to avoid assisting crime/fraud UNLESS disclosure prohibited by R.1.6
    = key as to when mandatory to disclose = that the client is using lawyer’s services to perpetuate crime/fraud
34
Q

what to do when client is using lawyer’s services to perpetuate crime/fraud

A

Must

  1. withdraw,
  2. then disaffirm

Ordinarily first two step enough BUT in extreme cases, required to also
3. Disclose

(Guidance from CMT 19, R.1.2 and CMT 3, R.4.1)

35
Q

client fraud and crimes that cause financial harm – balancing of 3 policies

A
  1. Encourage frank communication between clients and lawyers
  2. Prevent harm to the public
  3. Protect the integrity of the legal profession

Professional Responsibility (12 decks)

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