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)
In the context of a client-lawyer relationship, what information is considered to be confidential under the Model Rules of Professional Conduct (MRPC)? (Q)
The MRPC define as confidential any information relating to the representation of a client, regardless of the source of the information.
In general, under the MRPC, in what circumstances is a lawyer permitted to reveal confidential information? (Q)
In general, and subject to limited exceptions, a lawyer may only reveal confidential information if (1) the client gives informed consent, or (2) the disclosure is impliedly authorized to carry out the representation.
A lawyer was representing a client regarding a criminal charge of driving while intoxicated. The lawyer read in the newspaper that the client’s blood alcohol level had been tested and was above the legal limit. The next day at brunch, the lawyer told his friend that the client’s blood alcohol appeared to have been above the legal limit.
Has the lawyer violated his duty of confidentiality under the MRPC? (Q)
Yes. The lawyer violated his duty of confidentiality. The MRPC prohibit a lawyer from, among other things, disclosing information related to the representation of a client during the lawyer’s representation of the client, unless the client has given informed consent to the disclosure, or disclosure is authorized or required by the MRPC or other law. This applies not only to matters communicated in confidence directly by the client, but also to all information related to the representation—whatever the source.
Under the MRPC, is a lawyer required to make reasonable efforts to protect confidential information from accidental or unauthorized disclosure? (Q)
Yes. The MRPC require a lawyer to make reasonable efforts to prevent the accidental disclosure of confidential information, the unauthorized disclosure of confidential information, and unauthorized access to confidential information. Some of the factors in determining reasonableness are:
the sensitivity of the information,
the likelihood of disclosure without additional safeguards,
the cost of additional safeguards,
the difficulty of using the safeguards, and
the extent to which the safeguards interfere with the lawyer’s ability to represent clients.
In general, under the MRPC, does a lawyer’s obligation of confidentiality extend to a lawyer’s former clients? (Q)
Yes. In general, under the MRPC, a lawyer’s duty of client confidentiality extends to former clients, just as to current ones. This means that even after a client-lawyer relationship has ended, the lawyer is generally prohibited from revealing information relating to the representation of the client.
In general, under the MRPC, does a lawyer’s obligation of confidentiality extend to a lawyer’s prospective clients, even if they do not actually become the lawyer’s clients? (Q)
Yes. In general, under the MRPC, a lawyer’s duty of confidentiality extends to a prospective client (i.e., a person who consults with the lawyer about the possibility of forming a lawyer-client relationship) to the same extent as to the lawyer’s current and former clients, even if the prospective client does not ultimately become the lawyer’s client.
This rule recognizes that in an initial consultation with a lawyer, a prospective client might reveal information about the prospective client’s affairs, including information necessary for the lawyer to decide whether to undertake the representation. The lawyer is not allowed to reveal this information, regardless of whether a client-lawyer relationship is formed.
Under the MRPC, does the lawyer’s general obligation of confidentiality extend to information that is not itself confidential, but which could reasonably lead a third party to discover confidential information? (Q)
Yes. Under the MRPC, the lawyer’s general obligation of confidentiality extends to information that is not itself confidential, but which could reasonably lead a third party to discover confidential information.
A lawyer’s use of a hypothetical does not violate this principle provided that the hypothetical is not reasonably likely to enable a listener to determine the client’s identity or the situation involved.
Is the lawyer’s general obligation of confidentiality under the MRPC identical to the doctrines of attorney-client privilege and work-product protections? (Q)
No. The lawyer’s general obligation of confidentiality under the MRPC is related to, but much broader than, the concepts of attorney-client privilege and work-product protections. Both the attorney-client privilege and the work-product doctrine apply in judicial and other legal proceedings as methods of excluding communications or work product from evidence.
By contrast, the MRPC’s duty to maintain client confidentiality is a much broader rule that covers all information related to representing a client, regardless of the source, and it applies in a much wider range of contexts (i.e., not merely legal proceedings).
A lawyer successfully represented a client in a high-profile criminal matter. The lawyer was contacted by a book publisher to author a book discussing the representation. The lawyer decided to write the book.
In order to write the book without violating the duty of confidentiality under the MRPC, does the lawyer need to consult the client and obtain the client’s informed consent to the use of the client’s confidential information? (Q)
Yes. The lawyer needs to consult the client and obtain the client’s informed consent. A client may expressly relieve the lawyer of the duty of confidentiality (i.e., the duty to protect information related to the representation of a client) by giving informed consent to the disclosure of the client’s confidential information. The lawyer must consult with the client before the client provides consent, and the client must be adequately informed about how the confidential information will be used or disclosed.
Here, because the book concerned the lawyer’s representation of the client, writing the book would necessarily involve disclosing information protected by the duty of confidentiality. Thus, to avoid violating this duty, the lawyer must consult the client and obtain the client’s informed consent to the use of the information after explaining how the information will be used in the book.
Under the MRPC, under what circumstances is a lawyer impliedly authorized to disclose confidential client information to carry out the representation? (Q)
Under the MRPC, a lawyer is impliedly authorized to use or disclose confidential client information if it is appropriate to do so as part of the lawyer’s representation. The MRPC do not provide a single, comprehensive definition of when disclosure is appropriate under this rule. However, the MRPC suggest that disclosure may be allowed in situations such as: (1) a lawyer admitting a fact that cannot be disputed before a tribunal and (2) a lawyer making a disclosure that contributes to a satisfactory resolution of a matter within the representation. In addition, lawyers within a firm may disclose a client’s confidential information to one another as part of the representation, unless the client has given instructions that information should be shared only with specific lawyers.
Under the MRPC, may a client give express, informed consent to the lawyer’s disclosure of information relating to the lawyer’s representation of the client? (Q)
Yes. Under the MRPC, a client may expressly give informed consent to the lawyer’s disclosure of information relating to the lawyer’s representation of the client. Giving informed consent means the client agrees to a proposed course of conduct after the lawyer has communicated adequate information and explanation about:
the material risks of the proposed course of conduct and
any reasonably available alternatives to the proposed course of conduct.
A lawyer represented a client in a routine divorce proceeding. A few months later, the lawyer was part of a family-law panel discussion hosted by a local bar association. The lawyer presented a hypothetical situation based on the client’s divorce. The lawyer did not identify the client directly or give any specific identifying details about the parties in the divorce matter.
Did the lawyer’s use of the hypothetical violate the MRPC? (Q)
No. The lawyer’s use of the hypothetical did not violate the MRPC. The MRPC require a lawyer to protect information related to the representation of a client. This protection extends to disclosures that do not themselves reveal protected information but could lead a third party to discover protected information. However, a lawyer is permitted to use a hypothetical to discuss issues related to a representation as long as there is no reasonable likelihood that a listener will be able to identify the client or situation.
Here, the lawyer used the client’s divorce case as the basis for a hypothetical scenario discussed at the panel. The lawyer did not identify the client or provide identifying details about the parties, and accordingly, there was not a reasonable likelihood that a listener could identify the client or the situation. Thus, the use of the hypothetical did not violate the MRPC.
Must a lawyer obtain a client’s permission to disclose the client’s confidential information if the lawyer is seeking confidential legal advice regarding whether the lawyer’s course of conduct complies with the MRPC? (Q)
No. Under the MRPC, a lawyer generally is not required to obtain a client’s permission to disclose the client’s confidential information if the lawyer is seeking confidential legal advice regarding whether the lawyer’s course of conduct complies with the MRPC. The MRPC permit a disclosure to be made for this purpose because of the importance of a lawyer’s compliance with the MRPC.
A lawyer worked at a law firm with 700 attorneys. The lawyer was representing a client in a divorce proceeding. The lawyer had lunch with another lawyer at the law firm in the firm’s private cafeteria and discussed the client’s case during lunch. The client had not given any restrictions on which lawyers at the firm could be given information about the divorce matter.
Under the MRPC, was the lawyer impliedly authorized to discuss the client’s case with the other lawyer at the law firm? (Q)
Yes. Under the MRPC, the lawyer was impliedly authorized to discuss the client’s case with the other lawyer at the law firm. Lawyers in a law firm may, in the course of the firm’s practice, disclose to each other information relating to a client of the firm, unless the client has instructed that particular information be confined to specific lawyers at the firm.
Here, the lawyers worked at the same law firm, and they were therefore entitled to communicate with one another about the firm’s work. They were in the firm’s private cafeteria, ensuring that no one who worked outside the law firm could hear their discussion. The client had not expressly limited disclosure of the client’s information to specific lawyers at the firm. Thus, the lawyer was impliedly authorized to discuss the client’s case with the other lawyer at the firm.
A corporation hired a lawyer to help it file an application for a very sensitive and lucrative patent. The lawyer routinely transported the corporation’s draft patent documents in his briefcase on his commute to and from work on the subway. One day, the lawyer forgot his briefcase on the subway, and a third party accessed the patent documents.
Has the lawyer violated the MRPC? (Q)
Yes. The lawyer has violated the MRPC. The MRPC require a lawyer to take reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client. In determining whether a lawyer’s efforts are reasonable, relevant factors include the nature and sensitivity of the information and the cost and difficulty of employing safeguards to protect the information.
Here, the corporation’s patent application involved very sensitive material. It would not have been difficult or expensive to employ safeguards to protect the material—the lawyer could have either maintained the documents in the office or transported them only with extreme care and attention. Thus, the lawyer has failed to take reasonable efforts to prevent disclosure of the information and has violated the MRPC.
Under what circumstances do the MRPC permit a lawyer to reveal information relating to the representation of a client without informed consent or implied authorization? (Q)
A lawyer may reveal information related to the representation that the lawyer reasonably believes necessary to:
prevent reasonably certain death or bodily harm;
prevent a crime or fraud that is reasonably certain to cause financial or property-related harm, as to which the client has used or is using the lawyer’s services;
prevent or rectify a financial or property-related injury that has resulted or is reasonably certain to result from a crime or fraud furthered by the client’s use of the lawyer’s services;
obtain legal advice about the lawyer’s compliance with the MRPC;
comply with a law or court order;
establish claims or defenses in a formal controversy between the lawyer and the client or against the lawyer based on the client’s conduct;
respond to allegations in a legal claim or disciplinary proceeding concerning the representation; or
detect and resolve conflicts of interest.
A lawyer represented the husband in a divorce. The divorcing couple owned a business, the division of which was an issue in the divorce. During the representation, the husband revealed to the lawyer that for the past 10 years he had paid himself an annual bonus from the business’s earnings without his wife’s knowledge and had kept the money in a bank account of which the wife was unaware. The lawyer was uncertain whether the husband’s actions amounted to a crime or a fraud. Without informing the husband, the lawyer consulted a second lawyer, in a different firm, for advice on the lawyer’s ethical obligations. In the consultation, the husband’s lawyer showed the second lawyer relevant documents from which someone could readily determine the identities of the business and the parties.
Did the husband’s lawyer violate the MRPC by revealing client information to the second lawyer? (Q)
No. A lawyer normally must not reveal information relating to the representation of a client without express or implied authorization. However, a lawyer may reveal confidential information without this authorization if the lawyer reasonably believes that the information is necessary to obtain legal advice about the lawyer’s own compliance with the rules of professional conduct.
Here, the husband’s lawyer was reasonably concerned about his own ethical obligations in light of the husband’s possible crime or fraud. In obtaining ethical advice from the second lawyer, it was reasonable for the husband’s lawyer to show the second lawyer relevant documents so the second lawyer could understand the situation and render competent advice. Accordingly, it was reasonable for the husband’s lawyer to reveal client information in this process, and the husband’s lawyer did not violate the MRPC.
Before disclosing information under an exception to the MRPC’s general confidentiality rule, should a lawyer attempt to convince the client to act in a way that makes the disclosure unnecessary? (Q)
Yes. When possible, before disclosing information under an exception to the MRPC’s general confidentiality rule, a lawyer should attempt to convince the client to act in a way that makes the disclosure unnecessary. This procedure both protects client confidentiality and encourages clients to comply with the law.
Under the MRPC, if a court orders a lawyer to reveal confidential information, what procedure must the lawyer follow in responding to the order? (Q)
Under the MRPC, in responding to a court order requiring disclosure of confidential information, the lawyer must make a reasonable effort to notify the client of the order and consult with the client to obtain informed consent to the disclosure. If the client does not consent and instead wants to challenge the order, the lawyer should assert on behalf of the client all nonfrivolous claims that the court’s order is not authorized by other law or that the information sought is protected against disclosure by the attorney-client privilege or other applicable law. If the court rejects these arguments, the lawyer must consult with the client about appealing the ruling. If no appellate review is sought, and the client gives informed consent to the disclosure, the lawyer must make the disclosure.
Justin calls his lawyer, Vanessa, and tells her that he killed his friend the previous night and he buried the body in his backyard. Vanessa calls the authorities and passes on the information.
Is Vanessa subject to discipline? (B)
Yes. The ethical duty of confidentiality provides that a lawyer must not reveal any information relating to the representation unless the client has given informed consent, consent is impliedly authorized, or an exception to the duty applies. The closest exception is the “prevention of reasonably certain death or substantial bodily harm” exception, but here the friend is already dead. Consequently, Vanessa is subject to discipline for disclosing the information.
Talia represents Gene in his divorce. She has already prepared and submitted documents relating to Gene’s finances based on information from Gene. Later in the case, Gene admits to Talia that he had been hiding significant assets in offshore accounts to prevent his wife from receiving a larger settlement. Talia encourages Gene to let her amend the financial documents, but he refuses. Talia withdraws and sends an e-mail to the wife’s counsel disaffirming any financial documents she had sent on Gene’s behalf.
Is Talia subject to discipline? (B)
No. A lawyer may reveal the client’s confidential information to the extent necessary to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial financial harm to someone, if the client is using or has used the lawyer’s services in the matter. The same is true if the client has already acted, and the lawyer’s disclosure can prevent or mitigate the consequent financial harm. Gene was hiding significant assets and using Talia’s services to do so. Talia acted properly by disclosing information reasonably necessary to prevent substantial financial injury to the wife.
Which of the following does NOT accurately describe an exception to the duty of confidentiality? (B)
Preventing crimes or frauds by a client - correct
Preventing or mitigating substantial financial injury to a person caused by a client’s crime or fraud involving the lawyer’s services
Preventing reasonably certain substantial death or bodily harm
Obtaining legal ethics advice
Defending a lawyer against a charge of wrongdoing
Firm A and Firm B have been in merger discussions for some time, but they are concerned about possible conflicts of interest. Firm A asks Firm B to send a list summarizing each of its matters, including the name of the client involved, a brief summary of the general issues, and the estimated value of the claim. Firm B complies.
Is Firm B subject to discipline? (B)
Yes, but only for disclosing the estimated value of each matter. When a lawyer changes firms, when two firms merge, or when a law practice is being purchased, lawyers may disclose limited client information (e.g., client names and a brief summary of the general issues involved) in order to detect and resolve conflicts of interest, subject to the following conditions: (i) the disclosure may be made only after substantive discussions regarding the new relationship have occurred; (ii) the disclosure must be limited to the minimum necessary to detect any conflicts of interest; (iii) the disclosed information must not compromise the attorney-client privilege or otherwise prejudice the clients; and (iv) the disclosed information may be used only to the extent necessary to detect and resolve any conflicts of interest.
