Privilege & Confidentiality Flashcards

1
Q

What are the elements of the Lawyer-Client Privilege?

A

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)

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2
Q

Exceptions to the Lawyer-Client Privilege

A
  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
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3
Q

Rules related to Lawyer Work Product

A

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

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4
Q

Professional Obligation of Confidentiality - General Rule

A

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

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5
Q

Confidentiality obligations to prospective Cs

A

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

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6
Q

Standard for preserving confidentiality

A

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

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7
Q

Client Authorized Disclosure

A
  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)
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8
Q

What are the exceptions to confidentiality?

A
  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
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9
Q

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

A

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

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10
Q

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

A

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

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