Lawyer's Responsibility to Client: Duty to Preserve Confidentiality of Information; Duty to Protect Client's Property

Question 1

In general, what is the attorney-client privilege?

Answer 1

In general –> the attorney client privilege allows a client to refuse to testify and prevents his attorney from testifying in court about confidential communications

Question 2

What does the attorney-client privilege cover IF the client is a corporation?

Answer 2

1. communications btwn attorney and high ranking employee; AND
2. communications btwn attorney and ANY employee IF:
   (i) communication concerns subject within scope of EE’s duties; AND
   (ii) EE communicates at direction of his supervisor; AND
   (iii) EE knows that communication is to assist corp in obtaining legal advice

Question 3

What is scope of attorney client privilege?

What is special CA rule?

Answer 3

1. covers communcations made through agent that facilitates the attorney-client relationship;
2. covers communications even if attorney-client relationship is never formed
3. Under RPC, covers only communications pertaining to legal services, not about other subjects.

IN CA –> privilege attaches to WHOLE communication, even if it includes unprivileged material

Question 4

What is DURATION of attorney client privilege?

What is special CA rule?

Answer 4

General rule –> continues indefinitely, even if representation has terminated, and even after client’s death

CA rule –> terminates when a deceased client’s estate is settled and his personal rep is discharged

Question 5

What are the exceptions to attorney-client privilege? (4)

What is the special exception in CA?

Answer 5

1. client seeks atty’s services to enable or aid anyone in committing future crime or fraud
2. communication is relevant to breach of fiduciary duty arising out of attorney-client relationship
3. civil litigation arises btwn two persons who were formerly JOINT CLIENTS of attorney
4. attorney can furnish evidence about COMPETENCY or intention of client who has attempted to dispose of property by will or inter-vivos transfer

Additional CA exception –>
Privilege DOES NOT apply if lawyer REASONABLY BELIEVES disclosure is necessary to:
(1) prevent a CRIMINAL ACT; that is
(2) likely to result in SUBSTANTIAL BODILY INJURY OR DEATH of a person

Question 6

What is the duty of confidentiality under the RPC?

Answer 6

Lawyer:

1. must not reveal info relating to representation of client; AND
2. must make REASONABLE EFFORTS to prevent inadvertent disclosure of such info

NOTE –> confidentiality requirement applies EVEN IF info was obtained before or after representation

NOTE –> duty continues to apply even after lawyer-client relationship terminates

Question 7

What are the exceptions to the duty of confidentiality under RPC? (8)

Answer 7

RPC provides that attorney MAY reveal info pertaining to representation of client if:

1. client gives INFORMED CONSENT
2. disclosure is IMPLIEDLY AUTHORIZED in order to carry out representation
3. lawyer believes it’s REASONABLY NECESSARY to prevent a person’s REASONABLY CERTAIN DEATH OR SUBSTANTIAL BODILY HARM
4. disclosure is necessary to prevent client from cimmitting a crime or fraud that is likely to cause SUBSTANTIAL FINANCIAL LOSS to a person AND the client is using or has used the lawyer’s services to commit the crime or fraud (same is true if necessary to rectify or mitigate financial loss)
5. disclosure is REQUIRED by court order, ethical rules, or statute
6. disclosure is necessary to COLLECT FEE or protect lawyer
7. disclosure is necessary to obtain CONFIDENTIAL advice to follow ethics rules
8. disclosure is necessary:
   (i) to detect and resolve conflicts of interest arising from lawyers change of employment, AND
   (ii) revealing such info would not compromise the attorney client privilege or otherwise prejudice client

Question 8

What are the CA rules re: confidentiality?

What are the exceptions?

Answer 8

CA has no ethics rule on confidentiality

HOWEVER –> in attorney’s oath, there is a promise to maintain confidences of client.

CA Case law exceptions:

1. compelled by law or court order
2. to collect attorney fee
3. to defend against claim of legal malpractice, ineffective assistance of counsel, or other wrongdoing
4. attorney MAY (but is not required) to reveal client’s confidential info when necessary to prevent a CRIMINAL ACT that will cause DEATH OR SUBSTANTIAL BODILY INJURY

Question 9

What are the differences between attorney-client privilege and duty of confidentiality?

Answer 9

Attorney-client privilege:

• only applies to communication made during course of relationship
• only covers attorney’s formal testimony

Duty of Confidentiality:
- prevents ANY disclosure of ALL INFO related to representation, however and whenever derived

Question 10

What is attorney’s duty to protect a client’s property?

Answer 10

Attorney must:

1. hold client or 3rd party funds in sep trust account
2. keep records
3. keep client informed, and deliver funds as required
4. if lawyer is in possession of disputed property, lawyer must keep disputed property separate

IN CA –> lawyer must preserve records of client funds for 5 years after distribution