Module 3 (Client Confidentiality)

Question 1

when can a lawyer be allowed to reveal confidential information of a client?

Answer 1

when they are given informed consent from the client or was impliedly authorize to carry out the representation

Question 2

what does attorney-client privilege prevent?

Answer 2

a court or other governmental tribunal from using the powers of subpoena and contempt to compel confidential communications between an attorney and a client to use as evidence

Question 3

what does the ethical duty of confidentiality prohibit?

Answer 3

the attorney from voluntarily revealing information relating to the representation of a client

Question 4

where does confidentiality apply?

Answer 4

everywhere where attorney-client privilege does not apply

Question 5

what information does attorney-client privilege protect?

Answer 5

only information between the attorney and the client (or agents of either of them)

Question 6

what information does confidentiality protect?

Answer 6

any information that the attorney obtains relating to the representation of the client, no matter what the source of information is

Question 7

what does attorney-client privilege concern?

Answer 7

only disclosure of information

Question 8

what does confidentiality concern?

Answer 8

disclosure and use of information

Question 9

what does privilege cover when the client is a corporation?

Answer 9

communications between the lawyer and a high-ranking corporate official

Question 10

when does privilege cover communications between an attorney and other corporate employees at a corporation?

Answer 10

1) it was at the direction of the employee’s superior
2) employee knows that the communication is to obtain legal advice for the corporation
3) the communication concerns a subject within the scope of the employee’s duty to act for the corporation

Question 11

Does attorney-client privilege cover the mechanics details of the relationship such as identity, fee arrangement, and the fact that the attorney is acting for the client?

Answer 11

usually not

Question 12

when can the mechanical details be covered by attorney-client privilege?

Answer 12

if revealing them is tantamount to revealing a privileged communication

Question 13

what type of communications does the privilege cover?

Answer 13

oral and written

Question 14

can a client protect a preexisting document or thing from discovery simply by turning it over to the attorney?

Answer 14

no

Question 15

what does it mean for something to be considered “confidential”

Answer 15

that it was made by means not intended to disclose the communicated information to outsiders and that the communicating person must reasonably believe that no outsider will hear the contents of the statement

Question 16

does the presence of a 3rd party destroy confidentiality?

Answer 16

not if they were present to help further the attorney-client relationship (need not play a direct role and could be present bc of the client’s psychological state)

Question 17

under modern law, does eavesdroppers destroy confidentiality?

Answer 17

no, an eavesdropper can be prohibited from testifying about a confidential communication

Question 18

who is the “holder” of the privilege, the client or the attorney?

Answer 18

the client because the benefit exists for them

Question 19

who is able to waive confidentiality?

Answer 19

the client only

Question 20

what is another way that a client can waive confidentiality?

Answer 20

by asserting a claim or defense that puts the legal services at issue in the case

Question 21

if the client has not waived confidentiality and someone tries to obtain privileged information, what must the attorney do?

Answer 21

claim privilege on the client’s behalf

Question 22

does termination of a client-attorney relationship terminate attorney-client privilege?

Answer 22

no, it continues indefinitely

Question 23

does attorney-client privilege continue after a client dies?

Answer 23

yes

Question 24

when does attorney-client privilege not apply?

Answer 24

1) client seeks assistance in a crime
2) an issue of breach of duties (by client or attorney)
3) civil litigation between 2 persons who were formerly joint clients of the attorney
4) competency or intention of client to transfer property

Question 25

is material prepared by a lawyer for litigation or in anticipation of litigation immune from discovery or other compelled exposure?

Answer 25

Generally yes unless the opposition shows a substantial need for the material and an inability to gather the material without undue hardship

Question 26

are a lawyer’s mental impressions or opinions immune from discovery or other compelled exposure?

Answer 26

Yes unless the immunity has been waived

Question 27

Like attorney-client privilege, does a third party destroy confidentiality?

Answer 27

not necessarily, confidential information remains confidential even if it’s known to others, unless the information becomes generally known

Question 28

what does information considered generally known depend on?

Answer 28

surrounding circumstances but information isn’t generally known if it can be obtained by means of special knowledge or substantially difficult or expense

Question 29

when is an attorney permitted to disclose confidential information? CIDMDECC

Answer 29

1) client gave informed consent
2) the client implied consent
3) disclosure prevents death or exposure to substantial bodily harm
4) to mitigate substantial financial harm
5) a dispute concerning the attorney’s conduct
6) to obtain legal ethics advice
7) to detect and resolve conflicts of interest
8) court order

Question 30

does the death or substantial bodily harm exception to confidentiality require it to be imminent?

Answer 30

no only reasonably certain

Question 31

does the death or substantial harm exception to confidentiality require the lawyer to disclose the confidential information?

Answer 31

In some states it does but for the most part it just gives them discretion to do so

Question 32

what should an attorney do if they are using the exception of confidentiality because it involves a dispute regarding the attorney’s conduct?

Answer 32

1) reveal only what is necessary
2) attempt to limit only to those that need to know it
3) obtain protective orders or take other steps to minimize other risks of unnecessary harm to the client

Question 33

when would the exception of confidentiality in order to detect and resolve conflicts of interests apply?

Answer 33

1) lawyer changes firms
2) two firms merge
3) law practice is being purchased

Question 34

what conditions must be met when using the exception to confidentiality in order to detect and resolve conflicts of interest?

Answer 34

1) disclosure made only after substantive discussions regarding the new relationship have occurred
2) must be limited to minimum info necessary to detect conflicts of interest
3) must not compromise attorney-client privilege or prejudice the client
4) may only be used to the extent necessary to detect and resolve any conflicts of interest

Question 35

how is the reasonableness of a lawyer’s efforts to protect a client’s confidential information measured?

Answer 35

by considering:

1) sensitivity of client’s information
2) cost of additional safeguards
3) difficulty of implementing the safeguards