Pg 5 Flashcards
What is MR 1.6 the duty of confidentiality?
An attorney shall not reveal information relating to the representation of a client unless:
- the client gives informed consent
- disclosure is impliedly authorized to carry out the representation, or
- permitted under an exception
What type of effort is an attorney required to make to prevent inadvertent/unauthorized disclosure of privileged information relating to the representation of his client?
Reasonable efforts
If a client tells an attorney he killed two girls and no one knows about it, what is the procedure the attorney must follow?
He must first try to convince the defendant to come forward of the information, if that doesn’t work, there is no applicable exception
What is the most common way that the duty of confidentiality is breached?
Attorney carelessness or indiscretion. I.e.: misdirected fax, discussing clients by name where people might hear like in a restaurant or elevator
Is it OK for an attorney to use a hypothetical to discuss representation if there’s no reasonable likelihood a listener will figure out the identity of the client or the situation involved?
Yes
When an atty is transmitting information relating to the representation of his client, what is required from him?
Reasonable precaution to prevent information from going to an unintended recipient
Is it necessary for an attorney to use special security measures for communication methods with clients?
No, he only needs to take reasonable precautions
How long does the duty of confidentiality continue?
Until after the attorney client relationship is terminated
If an attorney moves to a different firm, can he represent someone in the same or substantially related matter from the old firm when the interests are materially adverse and the attorney had material information?
No, unless the former client gives informed written consent
What is the “Generally known“ exception to the duty of confidentiality?
The rule ceases to apply when the information becomes generally known. So if an attorney served a client, and the information became generally known about him, the attorney can use that information to represent another client later
What is an example of information that would apply to the exception to the duty of confidentiality rule regarding “generally known”?
Information about a corporation’s accounting fraud that gets widely reported on the news
Are the exceptions to the duty of confidentiality permissive or mandatory?
Permissive
What are the three doctrines that regulate an attorney’s duty to keep client information safe?
– Ethical duty of client confidentiality MR 1.6
– attorney-client privilege
– attorney work product doctrine
What is the duty of confidentiality in layman‘s terms?
Duty to maintain client confidence during and after representation unless an exception applies
What things does the duty of confidentiality apply to?
Anything communicated in confidence by the client, all information relating to the representation regardless of its source, when evidence is sought from an attorney in a judicial proceedings
What is considered confidential information?
Information relating to the representation that can be any form, not just documents. I.e.: documents, things, conversations, facts, or data
In order for something to be considered confidential information, does it matter where the information came from?
No, neither does it matter where you got it from, or from whom, or whether you learned about it after the representation or before the party became a client. If it relates to the representation, it is confidential
What is the rationale behind the duty of confidentiality?
To promote trust in the attorney client relationship so that clients feel safe sharing their information
When does the duty of confidentiality begin?
As soon as the attorney begins representing the client and can even apply to prospective clients
Who does the duty of confidentiality apply to?
Current, former, and potential clients.
How can the duty of confidentiality apply to a prospective client?
Even if a prospective client does not ultimately retain the attorney, if he interviews the attorney for the purpose of representation, he’s considered a prospective client, so pre-retention communications for the purpose of retaining an attorney are protected
What are the nine exceptions to the duty of confidentiality?
- client gives informed consent
- disclosure impliedly authorized
- prevent reasonably certain death/GBI
- prevent crime or fraud reasonably certain to result in substantial injury to financial/property interests of another
- prevent/mitigate/rectify substantial injury to financial/property interest of another
- attorney getting ethical advice about rules
- bringing a claim/defence in an atty-client controversy
- Necessary to comply with court order or law
- prevent conflict of interest
What is the rationale behind the nine exceptions to the duty of confidentiality?
Recognizing the overriding value of life and physical integrity
Do the nine exceptions to the duty of confidentiality apply to both future harm and past acts?
No, only to future harm
What is involved in the exception to the duty of confidentiality when the client gives informed consent?
Client agrees to the course of conduct after getting adequate information and explanation about the risks and reasonably available alternatives
What is the exception to the duty of confidentiality for a disclosure being impliedly authorized?
Attorneys are impliedly authorized to reveal information to concede facts not worth disputing, to make disclosure to help bring conclusion to a matter, to do negotiations, to disclose to other attorneys in the firm.
Is it better to use the exception of client giving informed consent to the duty of confidentiality or the exception of disclosure being impliedly authorized?
Always better to ask the client because informed consent holds up better than implied authority
What is involved in the exception to the duty of confidentiality for preventing reasonably certain death or substantial bodily harm?
An attorney must reasonably believe there is a present and substantial threat that someone will suffer harm at a later date if the attorney does not take action necessary to eliminate the threat
In order for the exception to the duty of confidentiality that allows for the prevention of reasonably certain death/GBI to apply, must the danger come from a crime?
It doesn’t have to be a crime
If a client tells his attorney he will kill his ex-wife, must the attorney tell the police?
No, because the exceptions to the duty of confidentiality are permissive and not mandatory, so the attorney does not HAVE to tell the police. But if he tells the police to prevent the ex-wife‘s death, that is permitted under an exception to the duty of confidentiality
If a nurse tells an attorney that she has euthanized seven patients at their request, and plans to do the same for three more, what can the attorney report to the police?
The attorney can only report on the future threat, not the past harm, because it is already finished and disclosure will not prevent a death or harm.
If an atty knows that a client is putting toxic waste into the water supply, can he tell the authorities?
Yes, if it presents a substantial risk to people’s lives from drinking the water and disclosure is necessary to eliminate the risk or reduce the number of victims
What is involved in the exception to the duty of confidentiality rule that provides for prevention of crime or fraud that is reasonably certain to result in substantial injury to financial or property interest of another?
If an attorney’s client has used or is using the attorney’s services to further a crime or fraud that is reasonably certain to result in substantial injury to financial or property interest of another, the attorney is exempt from the duty of confidentiality
What is involved in the exception to the duty of confidentiality that allows for the prevention, mitigation, rectification of substantial injury to the financial or property interest of another?
If an attorney’s client uses the attorney’s services to further substantial injury to the financial or property interest of another, the attorney is free to report this. This exception deals with both past and future harm
If an attorney overhears his client, who is a real estate agent, talking about screwing people out of millions of dollars in a deal that has nothing to do with the attorney’s representation of the client, can the attorney reveal this to authorities?
No, because the attorney’s services were not used to perpetrate the fraud
What is involved in the exception to the duty of confidentiality regarding an attorney getting ethical advice about complying with the model rules?
If the attorney is unsure of his ethical obligations, he can call the state bar hotline or talk to legal experts to get advice
What is involved in the exception to the duty of confidentiality that allows for bringing a claim/defense in the attorney-client controversy?
Any conflict between an attorney and his client that calls the attorney’s actions into question (malpractice or ineffective assistance) allows the attorney to defend himself and to reveal information he reasonably believed to be necessary to:
– est a claim or defense in the controversy
– est defense in a civil or criminal claim based on the attorney‘s conduct related to the client
– respond to allegations in any proceeding about the attorney’s representation of the client
What is involved in the exception to the duty of confidentiality when it is necessary to comply with a court order or applicable law?
Attorney is required to be candid with the tribunal even if this requires disclosing and confidential information.
What is more important - the duty of candour, or the duty of confidentiality?
The duty of candour trumps the duty of confidentiality sometimes
What is involved in the exception to the duty of confidentiality with regard to the prevention of a conflict of interest when an attorney moves to a new firm or a firm changes its composition?
The attorney can reveal the identity of previous clients and limited information about matters he handled for them so long as it will not compromise the attorney-client privilege or prejudice the client
