Pg 5

Question 1

What is MR 1.6 the duty of confidentiality?

Answer 1

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

Question 2

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?

Answer 2

Reasonable efforts

Question 3

If a client tells an attorney he killed two girls and no one knows about it, what is the procedure the attorney must follow?

Answer 3

He must first try to convince the defendant to come forward of the information, if that doesn’t work, there is no applicable exception

Question 4

What is the most common way that the duty of confidentiality is breached?

Answer 4

Attorney carelessness or indiscretion. I.e.: misdirected fax, discussing clients by name where people might hear like in a restaurant or elevator

Question 5

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?

Answer 5

Yes

Question 6

When an atty is transmitting information relating to the representation of his client, what is required from him?

Answer 6

Reasonable precaution to prevent information from going to an unintended recipient

Question 7

Is it necessary for an attorney to use special security measures for communication methods with clients?

Answer 7

No, he only needs to take reasonable precautions

Question 8

How long does the duty of confidentiality continue?

Answer 8

Until after the attorney client relationship is terminated

Question 9

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?

Answer 9

No, unless the former client gives informed written consent

Question 10

What is the “Generally known“ exception to the duty of confidentiality?

Answer 10

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

Question 11

What is an example of information that would apply to the exception to the duty of confidentiality rule regarding “generally known”?

Answer 11

Information about a corporation’s accounting fraud that gets widely reported on the news

Question 12

Are the exceptions to the duty of confidentiality permissive or mandatory?

Answer 12

Permissive

Question 13

What are the three doctrines that regulate an attorney’s duty to keep client information safe?

Answer 13

– Ethical duty of client confidentiality MR 1.6
– attorney-client privilege
– attorney work product doctrine

Question 14

What is the duty of confidentiality in layman‘s terms?

Answer 14

Duty to maintain client confidence during and after representation unless an exception applies

Question 15

What things does the duty of confidentiality apply to?

Answer 15

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

Question 16

What is considered confidential information?

Answer 16

Information relating to the representation that can be any form, not just documents. I.e.: documents, things, conversations, facts, or data

Question 17

In order for something to be considered confidential information, does it matter where the information came from?

Answer 17

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

Question 18

What is the rationale behind the duty of confidentiality?

Answer 18

To promote trust in the attorney client relationship so that clients feel safe sharing their information

Question 19

When does the duty of confidentiality begin?

Answer 19

As soon as the attorney begins representing the client and can even apply to prospective clients

Question 20

Who does the duty of confidentiality apply to?

Answer 20

Current, former, and potential clients.

Question 21

How can the duty of confidentiality apply to a prospective client?

Answer 21

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

Question 22

What are the nine exceptions to the duty of confidentiality?

Answer 22

1. client gives informed consent
2. disclosure impliedly authorized
3. prevent reasonably certain death/GBI
4. prevent crime or fraud reasonably certain to result in substantial injury to financial/property interests of another
5. prevent/mitigate/rectify substantial injury to financial/property interest of another
6. attorney getting ethical advice about rules
7. bringing a claim/defence in an atty-client controversy
8. Necessary to comply with court order or law
9. prevent conflict of interest

Question 23

What is the rationale behind the nine exceptions to the duty of confidentiality?

Answer 23

Recognizing the overriding value of life and physical integrity

Question 24

Do the nine exceptions to the duty of confidentiality apply to both future harm and past acts?

Answer 24

No, only to future harm

Question 25

What is involved in the exception to the duty of confidentiality when the client gives informed consent?

Answer 25

Client agrees to the course of conduct after getting adequate information and explanation about the risks and reasonably available alternatives

Question 26

What is the exception to the duty of confidentiality for a disclosure being impliedly authorized?

Answer 26

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.

Question 27

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?

Answer 27

Always better to ask the client because informed consent holds up better than implied authority

Question 28

What is involved in the exception to the duty of confidentiality for preventing reasonably certain death or substantial bodily harm?

Answer 28

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

Question 29

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?

Answer 29

It doesn’t have to be a crime

Question 30

If a client tells his attorney he will kill his ex-wife, must the attorney tell the police?

Answer 30

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

Question 31

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?

Answer 31

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.

Question 32

If an atty knows that a client is putting toxic waste into the water supply, can he tell the authorities?

Answer 32

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

Question 33

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?

Answer 33

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

Question 34

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?

Answer 34

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

Question 35

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?

Answer 35

No, because the attorney’s services were not used to perpetrate the fraud

Question 36

What is involved in the exception to the duty of confidentiality regarding an attorney getting ethical advice about complying with the model rules?

Answer 36

If the attorney is unsure of his ethical obligations, he can call the state bar hotline or talk to legal experts to get advice

Question 37

What is involved in the exception to the duty of confidentiality that allows for bringing a claim/defense in the attorney-client controversy?

Answer 37

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

Question 38

What is involved in the exception to the duty of confidentiality when it is necessary to comply with a court order or applicable law?

Answer 38

Attorney is required to be candid with the tribunal even if this requires disclosing and confidential information.

Question 39

What is more important - the duty of candour, or the duty of confidentiality?

Answer 39

The duty of candour trumps the duty of confidentiality sometimes

Question 40

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?

Answer 40

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