Duty of Confidentiality

Question 1

R1.6 on confidentiality and 3 exceptions

Answer 1

o (a) a lawyer shall not reveal info relating to the rep of a client unless:
 client gives informed consent (R1.0(e)),
• informed consent denotes the agreement by a person to a proposed course of conduct after the attny has communicated adequate info and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct
 the disclosure is impliedly authorized in order to carry out the rep, OR
• only really limited to the extent that the client’s instructions or special circumstances limit that authority
o ex – lawyers in a firm may, in the course of practice, disclose to each other info relating to a client of the firm unless the client has instructed otherwise
 the disclosure is permitted by paragraph (b)
 Notes
• **a lawyer’s use of a hypothetical to discuss issues relating to rep is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the ID of the client or the situation involved
• distinguish info “relating to the rep of the client” from info “within the scope of the A-C relationship” – this rule only applies to the former, which is much broader (it can include things you learned during the rep, not just things that were only part of your duties)

Question 2

1.6(b) discretionary disclosure (7 scenarios)

Answer 2

b) a lawyer may reveal info relating to the rep of a client to the extent the lawyer reasonably believes necessary:
 **even though this is a permissive rule, look to R4.1(b) (the caveat)

 (1) to prevent reasonably certain death/substantial bodily harm
• such harm is reasonably certain 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

 (2) to prevent the client from:
• committing crime/fraud,
• that is reasonably certain to result in substantial injury to the fiscal/proprietary interests of another,
• and in furtherance of which the client has used/is using the lawyer’s services

 (3) to prevent, mitigate, or rectify:
• substantial injury to the fiscal/proprietary interests of another,
• that is reasonably certain to result or has resulted from the client’s commission of crime/fraud,
• and in furtherance of which the client has used the lawyer’s services

 (4) to secure legal advice about the lawyer’s compliance with these Rules
• seeking out ethical guidance is not a shield against liability, however it bodes well in the lawyer’s favor

 (5) to:
• establish a claim/defense on behalf of the lawyer in a controversy btw lawyer and client,
• establish a defense to a criminal/civil charge against the lawyer base upon conduct in which the client was involved, or
• respond to allegations in any proceeding concerning the lawyer’s rep of the client

 (6) to comply with other law or a court order
• a court order would likely supersede this rule, but the attny must consult w the client so the client understands what is required

 (7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition/ownership of a firm, but only if the revealed info would not compromise ACP or otherwise prejudice the client
• **any such disclosure should include no more than the ID of the persons/entities involved in a matter, a brief summary of the general issues involved, and info about whether the matter has termed (but still only to the extent reasonably necessary)

Question 3

R4.1(b) on disclosure

Answer 3

• R4.1(b): in the course of repping a client, a lawyer shall not knowingly fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal/fraudulent act by a client, unless disclosure is prohibited by R1.6
o so while R1.6(b) is discretionary, this rule mandates disclosure in a situation in which a lawyer’s failure to reveal would constitute assisting a criminal/fraudulent act (limited circumstance)

Question 4

r1.8(b) on using client info to their disadvantage

Answer 4

• R1.8(b): a lawyer shall not use info relating to rep of a client to the disadvantage of the client unless the client gives informed consent, except as permitted/required by these Rules

Question 5

7 exceptions to claiming privilege

Answer 5

o (d) exceptions: no privilege can be claimed when…
 (1) the services of the lawyer were sought/obtained to enable/aid anyone to commit/plan to commit what the client knew/reasonably should have known to be a crime or fraud
• **a client’s intent to perform an act of crime/fraud triggers the exception – it matters not whether he knows the act is wrongful (and the lawyer’s knowledge/intent is irrelevant)
 (2) it relates to a communication relevant to an issue between parties who claim through the same deceased client
 (3) the communication is relevant to an issue of breach of duty by the lawyer to his client or vice versa
 (4) the communication is relevant to an issue concerning an attested document to which the lawyer is an attested witness
 (5) the communication is relevant to a matter of common interest between two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients
 (6) it has been waived by the client (see BELOW)
 (7) there is a claim of legal malpractice