Privilege and Confidentiality

Question 1

Lawyer-client privilege

Answer 1

Elements:

1. Confidential—C must intend for communication to be confidential
2. Communication—must be for purpose of seeking legal advice/representation
3. C holds privilege—only C can waive it, and L must assert privilege on C’s behalf
4. Duration—indefinite, survives C’s death (CA—terminates when C’s estate is settled)

Exceptions
• C’s future crime/fraud—in CA, can be committed by anyone, not just C
• Disputes between L and C or co-Cs
• Information likely to result in substantial bodily injury or death

Work product
• CA—writings that reflects L’s impressions, conclusions, opinions, or legal research/theories are not discoverable under any circumstances
• Other work product—may be discoverable if denial would unfairly prejudice other party

Question 2

Professional obligation of confidentiality

Answer 2

MR—L prohibited from disclosing information relating to representation of C (regardless of the source), or information that could reasonably lead to the discovery of protected information by a third party, unless C gives informed consent or disclosure is impliedly authorized

CA—L required to maintain inviolate the confidence and at every peril to himself preserve the secrets of C

Prospective C—L generally not permitted to use/reveal information learned in consultation with a prospective C (Note: a person who unilaterally communicated information to L without any reasonable expectation of forming a relationship with L is not a prospective C)

Preserving confidentiality—L must take reasonable precautions to safeguard confidential information from inadvertent/unauthorized disclosure to unintended recipients

Question 3

Client-authorized disclosure

Answer 3

Informed consent—L may reveal confidential information if C gives informed consent (after adequate communication of material risks and reasonably available alternatives)

Implied authority—permitted if necessary to carry out the representation (applies to law firms as well)

Question 4

Exceptions to confidentiality

Answer 4

1. Reasonably certain death or substantial bodily harm—disclosure must be no more than is necessary to prevent a criminal act
   • Harm or death must be imminent or reasonably certain to occur if L does not disclose
   • MR—allows (but does not require) L to disclose
   • CA—before disclosure, L must make a good-faith effort (if reasonable under the circumstances) to persuade C not to commit/continue the criminal act or prevent the threatened death or substantial bodily harm
2. Substantial financial harm to another (only MR—not applicable in CA)—disclosure is permitted if L reasonably believes it is necessary to prevent C from using L’s services to cause substantial financial harm to another
3. Securing legal advice—regarding L’s personal responsibility under MR
4. L-C controversy—disclosure is permitted if it is reasonably necessary to establish a claim or defense on L’s behalf
5. Compliance with other laws and court orders