Introduction to Confidentiality, Confidentiality: The Exceptions - June 13 & 15 Flashcards
Is a client’s casual consent to allow a lawyer to write about her case sufficient to waive confidentiality? (Lerman)
No. A lawyer who wants to disclose sensitive information about a client based on client consent (rather than implied authorization) must ensure that the client’s consent is “informed.” (5th - 402)
How can lawyers obtain informed consent? (Lerman)
To obtain informed consent, the lawyer must communicate “adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” It would be prudent to obtain the consent in writing. (402)
If a client consents to a lawyer’s revelation of confidences, does the client waive the protection of this rule? (Lerman)
Yes, but only to the extent that the lawyer has given the client full information about the potential risks. (402)
When does a lawyer have implied authority to reveal confidential information to carry out representation of a client? (Lerman)
A lawyer often needs to disclose confidential information as part of the work of representing a client — to state facts in a complaint, to negotiate a settlement, to present an argument in court, and so on.
According to Rule 1.6, Comment 5, lawyers generally have implied authority to reveal confidences to carry out their work “except to the extent that the client’s instructions or special circumstances limit that authority.”
(403)
If a lawyer is accused of wrongdoing, must he wait until a lawsuit or a charge is filed before he may reveal information to defend himself? (Lerman)
No. The lawyer’s right to respond arises when an assertion of such complicity [in the client’s wrongdoing] has been made. Paragraph (b)(5) does not require the lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion. The right to defend also applies, of course, where a proceeding has been commenced. (448-49)
Does the self-defense exception apply if a third party makes a claim against a client and the lawyer is accused of having played a role in a client’s misconduct? (Lerman)
The lawyer may be allowed to reveal confidences even if he is not alleged to be the primary wrongdoer according to Rule 1.6, Comment 10: A charge [of wrongdoing that justifies revelation of confidences] can arise in a civil, criminal, disciplinary or other proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person, for example, a person claiming to have been defrauded by the lawyer and client acting together. (449)
Does the self-defense exception protect lawyers who disclose confidential information when responding to negative online reviews? (Lerman)
Recent authority has concluded that the answer is no. Professor Cassandra Burke Robertson, who has examined this issue, anticipates that most states will reach the same conclusion. The growth of online review platforms have led some lawyers to post responses to negative reviews. Nevertheless, negative online reviews of some lawyers have occasionally prompted the lawyers to respond, resulting in discipline for violations of Rule 1.6. (449-50)
Under what conditions may a lawyer reveal confidential information in self-defense? (Lerman)
To establish a claim against a client for unpaid fees
To defend against a claim of malpractice or other civil liability against the lawyer
To defend against a disciplinary proceeding
To defend against a criminal charge (451)
When is revelation allowed? (Lerman)
The lawyer need not wait for formal proceedings to be instituted but may reveal information to prevent such action. (451)
When authorized, how much can a lawyer reveal? (Lerman)
No more than necessary to vindicate the lawyer. The lawyer should minimize the number of people who learn the confidential information revealed, should seek a protective order, and should take other available steps to avoid the dissemination of the information. (451)
Should the lawyer inform the client before revealing confidential information? (Lerman)
Yes. The lawyer should notify the client before using confidential information in self-defense and should seek solutions that do not require the lawyer to make the revelation, but the lawyer may use the information even if the client does not consent. (451)
