MR: Client Confidentiality Flashcards
General Rule
A lawyer must not reveal any information relating to the representation of the client.
A lawyer may, however, reveal such information if the client gives informed consent, or if the disclosure is impliedly authorized to carry out the representation.
Differences between the Ethical Duty of Confidentiality v. Attorney-Client Privilege
1) WHAT THEY PROHIBIT
The attorney-client privilege is an exclusionary rule of evidence law (a court cannot to compel the revelation of confidential communications between an
attorney and a client.)
The ethical duty of confidentiality prohibits an
attorney from VOLUNTARILY revealing information relating to the representation of a client.
2) WHAT THEY PROTECT
The attorney-client privilege protects only confidential communications between the attorney and client.
The ethical duty covers not only confidential communications, but any other information that the attorney obtains relating to the representation of the client, no matter what the source of that information.
3) DISCLOSURE V. USE
Attorney-client privilege concerns only the disclosure of information. The ethical duty of confidentiality concerns both the disclosure and use of information.
An attorney can be disciplined for disclosing a client’s confidential information
without the client’s informed consent, or for using confidential information to
the disadvantage of a client without the affected client’s informed consent
Ethical Duty of Confidentiality and Exception
1) Duty Not Destroyed by Presence of Third Party
The presence of a non-privileged third person does not necessarily destroy an attorney’s duty of confidentiality.
Confidential information remains confidential even if it is known to others, unless the information becomes generally known. Information is not generally known when it can be obtained only by means of special knowledge or substantial difficulty or expense.
2) Exceptions to the Duty of Confidentiality
- Client’s Informed Consent
- Implied Authority
- Disclosure to Prevent Death or Substantial Bodily Harm
- Disclosure to Prevent or Mitigate Substantial Financial Harm
- Dispute Concerning Attorney’s Conduct
- Disclosure to Obtain Legal Ethics Advice
- Disclosure to Detect and Resolve Conflicts of Interest
- Disclosure Required by Law or Court Order
3) Protecting Confidential Information
A lawyer must make reasonable efforts to protect a client’s confidential information from unauthorized disclosure by the lawyer and those under the
lawyer’s supervision, and from unauthorized access by third parties.
The reasonableness of the lawyer’s efforts is determined by considering such factors as the sensitivity of the client’s information, the cost of additional
safeguards, and the difficulty of implementing the safeguards.
Basic Rule: Attorney Client Privilege
The attorney-client privilege prohibits a court or other governmental tribunal from compelling the revelation of confidential communications between an attorney (or an attorney’s agent) and a client (or a client’s agent) if the subject of the communication concerns the professional relationship between the attorney and the client.
Who is a “client”?
A “client” means a person or entity that seeks legal services from an attorney.
The privilege covers preliminary communications leading up to an attorney-client relationship, even if no such relationship develops.
Corporate Clients
When the client is a corporation, the privilege covers communications between
the lawyer and a high-ranking corporate official.
It also covers communications between the lawyer and another corporate employee if the following conditions are met:
1) The employee communicates with the lawyer at the direction of the
employee’s superior;
2) The employee knows that the purpose of the communication is to obtain
legal advice for the corporation; and
3) The communication concerns a subject within the scope of the employee’s duties to act for the corporation
Who is an “attorney”?
An “attorney” means a person who is authorized (or whom the client reasonably believes to be authorized) to practice law in any state or nation.
However, for the privilege to apply, the attorney must be acting as an attorney, not in some other capacity, such as a friend, business advisor, or member of the family
What is a “communication”?
The term “communication” covers information passed from the client to the attorney and from the attorney to the client.
It also covers information passed to or from the agents of either the attorney or the client.
Mechanical Details of Relationship
Usually the attorney-client privilege does not cover the mechanical details of the relationship, such as the identity of the client, the fee arrangement between the attorney and client, and the bare fact that the attorney is
acting for the client.
But these mechanical details can be protected by the privilege if revealing them is tantamount to revealing a privileged communication.
Preexisting Documents and Things
The attorney-client privilege covers both oral and written communications.
BUT, the client cannot protect a preexisting document from discovery simply by turning it over to the attorney.
If the document or thing would be discoverable in the client’s hands, it is equally discoverable in the attorney’s hands.
What is “confidential”?
For a communication must be “confidential,” it must have been made by a means not intended to disclose the communicated information to outsiders, and the communicating person must reasonably believe that no outsider will hear the contents of the statement.
The presence of third parties on confidentiality
The presence of a third party will not destroy the confidentiality if the third party was present to help further the attorney-client relationship.
However, the third party need not play a direct role in the communication and may be present because of the client’s psychological needs (e.g., a family member accompanying the client)
- BUT NOT a friend there to go out with the client afterwards
Waving the attorney-client privilege
Client is the only person who can waive this privilege
A waiver consists of a failure to claim the privilege when there is an opportunity
to do so, or the intentional revelation of a significant portion of the privileged
communication.
The client may also waive the privilege by asserting a claim or defense that
puts the legal services at issue in the case.
E.g., where a defendant appeals a criminal conviction on the basis of ineffective assistance of counsel at trial, the communications between the defendant and the trial attorney are not privileged
How long does the Attorney-Client privilege last
The attorney-client privilege continues indefinitely.
Termination of the relationship does not terminate the privilege.
The privilege even survives the death of the client, subject to exceptions relating to the deceased’s disposition of property
Exceptions to the Attorney-Client privilege
The attorney-client privilege does not apply if:
a. If the client seeks the attorney’s services to engage in or assist a future crime or fraud.
b. Communications that are relevant to an issue of breach (by either the attorney or the client) of the duties arising out of the attorney-client relationship.
c. In civil litigation between two persons who were formerly the joint clients of the attorney.
d. The attorney can furnish evidence about the competency or intention of a client who has attempted to dispose of property by will or inter vivos transfer
