Pt. 3 Client Confidentiality Flashcards
general rule — lawyer must not reveal ANY information relating to the ________ of the client; but, a lawyer may reveal such info if the client gives ____ ____ OR if the disclosure is _____ authorized to carry out the representation
representation; informed consent; impliedly
the _____-_____ ________ is an exclusionary rule of evidence law; it prevents a court, or other gov’t tribunal, from using subpoena and contempt to compel the revelation of confidential _________ between an _____ and ______ (or agents of either).
attorney-client privilege; communications; attorney and client
ethical day of confidentiality prohibits an attorney from __________ revealing info relating to the representation of client
voluntarily
ethical duty of confidentiality covers ___ kinds of info than the a-c privilege
more
attorney-client privilege concerns only the ______ of information, while the ethical duty of confidentiality concerns both the _______ and the ___ of info
disclosure; disclosure and use
attorney can be disciplined for ________ a client’s confidential info without the client’s informed consent (unless an exception applies) OR for using confidential info to the _________ of a client, former client, or prospective client, without the affected client’s informed consent
disclosing; disadvantage
client in attorney-client privilege defined
a person or entity that seeks legal services from an attorney (privilege covers preliminary communications leading up to a-c relationship even if no relationship develops)
corporate clients & the a-c privilege — covers communications b/t lawyer and a ___-_____ corporate official and communications b/t lawyer and another corp. EE if the following conditions are met: (1) EE communicates with the lawyer at the _____ of the EE’s superior, (2) EE knows that the purpose of the communication is to obtain ____ ____ for the corp., and (3) communication concerns a subject within the _____ of the EE’s duties to act for the corp.
high-ranking; direction; legal advice; scope
attorney defined in attorney-client privilege
a person who is authorized (or whom the client reasonably believes to be authorized) to practice law in any state or nation; attorney MUST be acting as an attorney–not in some other capacity, like a friend, family member, business advisor, etc.
types of mechanical details of an a-c relationship that the privilege does NOT cover —-
identity of the client, fee arrangement, and the bare fact that a the attorney is acting for the client BUT these details CAN be protected by the privilege if revealing them is tantamount to revealing a privileged communication
a-c privilege covers both _____ and ______ communications
oral and written
client cannot protect a ______ document or thing from discovery simply by turning it over to the attorney; if document or thing would be discoverable in client’s hand, it is equally discoverable in attorney’s hands
preexisting
confidential defined for purposes of a-c privilege
must have been made by a means not intended to disclose the communicated info to outsiders AND the communicating person must reasonably believe that no outsider will hear the contents of the statement
presence of 3rd party and a-c privilege
will not destroy the confidentiality IF third party was present to help further the a-c relationship so long as the third party does not play a direct role in the communication and is present b/c of client’s psychological needs
eavesdroppers and a-c privilege
does not destroy a-c privilege; can be prohibited from testifying about a confidential (privileged) communication
who is the holder of the a-c privilege
the client–thus, the client is the one who can claim or waive the privilege
waiver of a-c privilege consists of a ______ to claim the privilege when there is an opp. to do so OR the ______ revelation of a significant portion of the privileged communication
failure; intentional
client may also waive a-c privilege by asserting a claim or defense that puts the ____ _____ at issue int he case (like appealing criminal conviction on basis of ineffective assistance of counsel)
legal services
if client has not waived the a-c privilege and someone tries to obtain privileged info when client is not present, lawyer ______ claim the privilege on client’s behalf
must
a-c privilege continues for how long?
indefinitely; even survives death of client (exceptions relating to the deceased’s disposition of property)
exceptions to the a-c privilege - (1) the privilege does not apply if client seeks the attorney’s services to ______ in or ____ a future crime or fraud; (2) does not apply to a communication that is ______ to an issue of breach of the duties arising out of the a-c relationship; (3) does not apply in civi. litigation between two persons who were formerly the _____ client of the attorney; and (4) does not apply in variety of situations in which the attorney can furnish evidence about the _______ or _____ of a client who has attempted to dispose of property by will or inter vivos transfer
engage in or assist; relevant; joint; competency or intention
material prepared by a lawyer for ________ or in __________ of _______ is immune from discovery or other compelled disclosure unless opposing side shows substantial need for the material and an inability to gather the material w/o undue hardship
litigation or in anticipation of litigation
a lawyer’s _____ ______ or _______ are immune from discovery or compelled disclosure regardless of the opposition’s need unless the immunity has been waived
mental impressions or opinions
unlike a-c privilege, the presence of non privileged third person does not necessarily destroy an attorney’s duty of _______, instead the information remains confidential even if it is known to others UNLESS the info becomes ________ __________
confidentiality; generally known
information is not generally known when it can be obtained only by means of ______ ______ or ______ ______ or expense
special knowledge OR substantial difficulty
8 exceptions to duty of confidentiality (generally) —
(1) informed consent from client, (2) implied authority from client, (3) disclosure to prevent death or substantial bodily harm, (4) disclosure to prevent or mitigate substantial financial harm, (5) dispute concerning attorney’s conduct, (6) disclosure to obtain legal ethics advice, (7) disclosure to detect and resolve conflicts of interest, (8) disclosure required by law or court order
informed consent exception to duty of confidentiality — an attorney may ___ or ____ confidential info if the client gives informed consent
reveal or use
implied authority exception to duty of confidentiality — an attorney has implied authority from the client to use or disclose confidential info when appropriate to carry out the ____________ unless the client gives specific instructions to the contrary
representation
disclosure to prevent death or substantial bodily harm exception to duty of confidentiality — lawyer MAY reveal client’s confidential info the the extent that the lawyer ______ ____ necessary to prevent reasonably _____ death or substantial bodily harm (harm can be from whatever cause and it need not be criminal act)
reasonably believes; certain
disclosure to prevent or mitigate substantial financial harm exception to duty of confidentiality —- lawyer may reveal client’s confidential info to the extent necessary to prevent the client from committing a crime or fraud the is _____ ____ to result in substantial financial harm to someone, IF The client is using or has used the lawyer’s services in the matter; same is true if the client has ALREADY acted and lawyer’s disclosure can prevent or mitigate
reasonably certain
dispute concerning attorney’s conduct exception to duty of confidentiality — an attorney may reveal a client’s confidential info the extent necessary to _____ the attorney’s interests in a dispute that involves the conduct of the attorney; the attorney SHOULD (1) reveal only what is ______, (2) attempt to limit the disclosure to those who ___ to know it, and (3) obtain _____ ______ or take other steps to minimize risk of unnecessary harm to the client
protect; necessary; need; protective orders
disclosure to obtain legal ethics advice exception to duty of confidentiality — lawyer may disclose enough of the client’s confidential info as is ______ to obtain legal ethics advice for the lawyer
necessary
disclosure to detect and resolve conflicts of interest (i.e., when lawyer changes firms, two firms merge, law practice being purchased, etc.) duty of confidentiality — four conditions: (1) disclosure may be made only after ________ discussions regarding the new relationship have occurred, (2) disclosure must be limited to the ______ necessary to detect any conflicts of interest, (3) disclosed info must not _______ the a-c privilege or otherwise ______ the clients, and (4) disclosed info may be used only to the extent necessary to _____ and _____ any conflicts of interest
substantive; minimum; compromise; detect and resolve
lawyer must take ______ ___ to protect a client’s confidential info from inadvertent or unauthorized disclosures by the lawyer and those under the lawyer’s supervision and from unauthorized access by third parties
reasonable efforts (determined by considering factors like the sensitivity of client’s info, cost of additional safeguards, and difficulty of implementing safeguards)
