Protecting Client's Interests and Property

Question 1

duty of confidentiality

Answer 1

1. can’t reveal any info relating to rep of client unless client consents or an exception applies
2. affirmative duty to prevent unauthorized access or inadvertent disclosures
3. broad scope – applies whether it’ll harm client, whether client requested it, and regardless of the source of info (as long as obtained in the course of representation)

Timing: applies to prospective clients, and duty continues after relationship ends / even after client dies

Question 2

exceptions to duty of confidentiality

Answer 2

1. consent or implied authority
2. prevent reasonably certain death or substantial bodily harm (CA: try to talk client out of it first + warn them you’re going to tell, unless warning unreasonable)
3. prevent or rectify substantial financial loss (ABA only)
4. defend self or establish claim against a client’
5. to obtain legal ethics advice
6. to address conflicts resulting from organizational change
7. to comply with court order, law, or other ethics rule (but try to challenge it/narrow the scope before you reveal) (CA: other ethics rules generally do not supersede the duty of confidentiality)

Question 3

clash of duties

Answer 3

duty of confidentiality that runs to client, but might have another affirmative duty to another entity (e.g., candor to tribunal might overcome)

CA: other ethics rules generally do not trump confidentiality

Question 4

A-C privilege

Answer 4

1. allows client to refuse to testify and prevent lawyer from testifying about confidential communications between you or your agents
2. applies only to comms that pertain to legal services
3. documents prepared by an attorney for his own use in prosecuting case are not protected by A-C (but look to civ pro work product)

client = person/entity seeking legal services from you
corp clients – communications w/ corp employees privileged if they are directed or authorized by corp and they concern employees duties

Question 5

when does A-C priv attach

Answer 5

attaches to communications w/ prospective clients and continues after representation ends

CA: ends after the client’s death when estate is settled and personal representative is discharged

Question 6

Exceptions to A-C priv

Answer 6

1. when client seeks attorney services to aid future crime/fraud
2. if relevant to issue about A-C relationship itself
3. civil lit between multiple people who were formerly joint clients
4. when lawyer called to give evidence of competency or intention of client who attempted to give property by will or inter vivos transfer

CA: adds exception for when disclosure is necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in a person’s substantial bodily injury or death (also exception to duty of confidentiality)

Question 7

separation of funds

Answer 7

• money received must be placed in interest-bearing client trust account separate from lawyer’s personal and biz accounts
• advanced payments must also go into client trust account

Question 8

safekeeping and delivery of property

Answer 8

1. put in safe deposit box or other place of safekeeping as soon as practicable
2. notify client / third person when receives funds/property that’s in their interest
3. promptly delivery funds/property when they’re entitled
4. keep records for at least 5 years after final distribution of property and render written accountings

Question 9

disputed funds

Answer 9

promptly distribute all portions not in dispute; disputed portion must be kept separate in client trust account until resolution of dispute