Module 3 (Client Confidentiality) Flashcards
when can a lawyer be allowed to reveal confidential information of a client?
when they are given informed consent from the client or was impliedly authorize to carry out the representation
what does attorney-client privilege prevent?
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
what does the ethical duty of confidentiality prohibit?
the attorney from voluntarily revealing information relating to the representation of a client
where does confidentiality apply?
everywhere where attorney-client privilege does not apply
what information does attorney-client privilege protect?
only information between the attorney and the client (or agents of either of them)
what information does confidentiality protect?
any information that the attorney obtains relating to the representation of the client, no matter what the source of information is
what does attorney-client privilege concern?
only disclosure of information
what does confidentiality concern?
disclosure and use of information
what does privilege cover when the client is a corporation?
communications between the lawyer and a high-ranking corporate official
when does privilege cover communications between an attorney and other corporate employees at a corporation?
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
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?
usually not
when can the mechanical details be covered by attorney-client privilege?
if revealing them is tantamount to revealing a privileged communication
what type of communications does the privilege cover?
oral and written
can a client protect a preexisting document or thing from discovery simply by turning it over to the attorney?
no
what does it mean for something to be considered “confidential”
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
does the presence of a 3rd party destroy confidentiality?
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)
under modern law, does eavesdroppers destroy confidentiality?
no, an eavesdropper can be prohibited from testifying about a confidential communication
who is the “holder” of the privilege, the client or the attorney?
the client because the benefit exists for them
who is able to waive confidentiality?
the client only
what is another way that a client can waive confidentiality?
by asserting a claim or defense that puts the legal services at issue in the case
if the client has not waived confidentiality and someone tries to obtain privileged information, what must the attorney do?
claim privilege on the client’s behalf
does termination of a client-attorney relationship terminate attorney-client privilege?
no, it continues indefinitely
does attorney-client privilege continue after a client dies?
yes
when does attorney-client privilege not apply?
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
is material prepared by a lawyer for litigation or in anticipation of litigation immune from discovery or other compelled exposure?
Generally yes unless the opposition shows a substantial need for the material and an inability to gather the material without undue hardship
are a lawyer’s mental impressions or opinions immune from discovery or other compelled exposure?
Yes unless the immunity has been waived
Like attorney-client privilege, does a third party destroy confidentiality?
not necessarily, confidential information remains confidential even if it’s known to others, unless the information becomes generally known
what does information considered generally known depend on?
surrounding circumstances but information isn’t generally known if it can be obtained by means of special knowledge or substantially difficult or expense
when is an attorney permitted to disclose confidential information? CIDMDECC
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
does the death or substantial bodily harm exception to confidentiality require it to be imminent?
no only reasonably certain
does the death or substantial harm exception to confidentiality require the lawyer to disclose the confidential information?
In some states it does but for the most part it just gives them discretion to do so
what should an attorney do if they are using the exception of confidentiality because it involves a dispute regarding the attorney’s conduct?
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
when would the exception of confidentiality in order to detect and resolve conflicts of interests apply?
1) lawyer changes firms
2) two firms merge
3) law practice is being purchased
what conditions must be met when using the exception to confidentiality in order to detect and resolve conflicts of interest?
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
how is the reasonableness of a lawyer’s efforts to protect a client’s confidential information measured?
by considering:
1) sensitivity of client’s information
2) cost of additional safeguards
3) difficulty of implementing the safeguards