Privilege & Confidentiality

Question 1

What are the elements of the Lawyer-Client Privilege?

Answer 1

Confidential - C must intend for communication to be confidential (consider any 3rd parties present vs. unknown eavesdroppers)
Communication - must be for the purpose of seeking legal advice/representation
C Holds the Privilege - only C can waive it, and L must assert privilege on C’s behalf
Duration - indefinite. Survives c’s death (CA - terminates when C’s estate is settled)

Question 2

Exceptions to the Lawyer-Client Privilege

Answer 2

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

Question 3

Rules related to Lawyer Work Product

Answer 3

In CA - writings that reflect 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 4

Professional Obligation of Confidentiality - General Rule

Answer 4

Under ABA - Lawyer prohibited from disclosing information relating to representation of C (regardless of 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

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

Question 5

Confidentiality obligations to prospective Cs

Answer 5

L is generally not permitted to use/reveal information learned in consultation with a prospective C

In CA - communications b/w prospective C and L are not protected if made (i) by a person who consults L w/o a good faith intention to retain L, (ii) after L states she is unwilling or unable to represent the person, or (iii) unilaterally without a reasonable expectation that L will be retained

Question 6

Standard for preserving confidentiality

Answer 6

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

Question 7

Client Authorized Disclosure

Answer 7

1. Informed Consent - L may reveal confidential information if C gives informed consent (after adequate communication of material risks and reasonably available alternatives)
2. Impliedly authorized - permitted if necessary to carry out the representation (applies to law firms as well)

Question 8

What are the exceptions to confidentiality?

Answer 8

1. Death or substantial bodily harm
2. Substantial financial harm to another
3. Securing legal advice
4. Lawyer-Client controversy
5. Compliance with other laws and court orders

Question 9

What are the specific rules of the “death or substantial bodily harm” exception to confidentiality?

Answer 9

ABA - allows disclosure to prevent “reasonably certain” death or substantial bodily harm to another

CA - allows disclosure reasonably believed necessary to prevent a CRIMINAL ACT that L reasonably believes will result in death or substantial bodily harm

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

Question 10

What are the specific rules of the “substantial financial harm to another” exception to confidentiality?

Answer 10

ONLY applies under ABA and NOT 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