Kaplan Mod 3

Question 1

Confidentiality of information has three major areas, what are they?

Answer 1

Duty of confidentiality, Attorney-client privilege, work product doctrine

Question 2

What are the applicable rules that govern the three major areas related to confidentiality of information?

Answer 2

1. Duty of confidentiality is governed by the rules of professional conduct
2. attorney-client privilege is governed by the federal rules of evidence
3. work product doctrine is governed by the federal rules of civil procedure

Question 3

The attorney-client privilege and the work product doctrine apply in what kinds of proceedings?

Answer 3

Judicial and other proceedings where an attorney may be called as a witness or required to produce evidence concerning a client

Question 4

How is the duty of confidentiality much broader than the rule of attorney-client privilege?

Answer 4

The duty of confidentiality also applies in situations besides those where evidence is sought from the lawyer through compulsion of the law. This rule applies to matters communicated in confidence by the client, but also to all information relating to the representation regardless of its source

Question 5

What is the scope of the duty of confidentiality?

Answer 5

It applies to all information relating to the representation of the client, Not just things communicated by the client to the attorney in confidence.

Question 6

When does the duty of confidentiality terminate?

Answer 6

It doesn’t terminate when the attorney client relationship ends. The duty outlives the relationship and even survives the death of the client

Question 7

What is the duty of confidentiality rule?

Answer 7

An attorney must not reveal information relating to the representation of a client unless the client gives informed consent, or the disclosure is impliedly authorized in order to carry out the representation

Question 8

Who all does the duty of confidentiality extend to?

Answer 8

Clients, former clients, and prospective clients

Question 9

What are some other exceptions to the duty of confidentiality that allow a lawyer to reveal information?

Answer 9

• if the lawyer is reasonably certain that a substantial economic or physical injury reasonably certain to cause death or substantial bodily harm will result
  – information can be disclosed relating to a client’s representation in order to establish a claim or defence against a client
  – Information can be disclosed if the attorney needs it to establish his own criminal defense, or if he is being sued in a civil claim

Question 10

What information does the attorney client privilege apply to?

Answer 10

Only confidential communications of the client to a lawyer made for the purpose of obtaining legal advice or services

Question 11

When does the attorney client privilege terminate?

Answer 11

It doesn’t terminate when the attorney-client relationship ends, it outlives the relationship and even survives the death of the client

Question 12

Is the duty of confidentiality waivable?

Answer 12

No

Question 13

Is the attorney client privilege waivable?

Answer 13

Yes

Question 14

What are two major situations that an attorney can reveal information in and it would not violate attorney-client privilege?

Answer 14

1. attorneys can reveal information in will contests about what the testator said when drawing up the will
2. When clients jointly consult with an attorney about a common legal problem, the information is privileged unless a dispute arises between the clients and then there is no attorney-client privilege

Question 15

If a brother and sister inherited a house from their parents, and hire a lawyer together, but later have a dispute between themselves, how does attorney client privilege work?

Answer 15

Their communications are privileged until they were pitted against each other, and then there’s no privilege for each of them against the other

Question 16

What is work product doctrine?

Answer 16

Materials prepared in anticipation of litigation cannot be obtained by opposing counsel by means of a discovery request unless opposing counsel can show:

1. in preparing for the case the opposing side has a substantial need for the materials requested, and
2. is unable to get substantially equivalent material without undue hardship

Question 17

Is the work product doctrine waivable?

Answer 17

Yes

Question 18

Which of these three doctrines are waivable: duty of confidentiality, attorney-client privilege, work product doctrine?

Answer 18

Both attorney-client privilege and work product doctrine are waivable, but the duty of confidentiality is not

Question 19

What are the only two things that make the work product doctrine apply?

Answer 19

It only applies to discovery requests made by opposing counsel, and only to materials such as tangible items that are prepared in anticipation of litigation

Question 20

When is the work product doctrine waived without consent of the atty?

Answer 20

When the material is disclosed in a manner that materially increases the likelihood that an adversary will obtain its information. I.e.: if it was incorporated into a motion, which is a public filing, even though it began as work product, now it is out there, and no longer is protected

Question 21

Which duty protects all information related to the representation, even if the information did not come from the client?

Answer 21

The duty of confidentiality. The attorney client privilege (on the other hand) only applies to confidential communications of a client to his lawyer for the purpose of getting legal advice or services

Question 22

If your client just found out that his wife was getting remarried and planning to take the children with her out of state, so the client said he was going to poison her the next time he saw her unless the current custody agreement stayed the same, are you permitted to reveal this threat?

Answer 22

It depends on whether you felt this was a very real and direct threat. The lawyer must first try to talk down the client, if he cannot, he must tell the client that he is bound to reveal the information, etc.