The Ethical Duty of Confidentiality, ACP & WPD

Question 1

What’s the duty of confidentiality?

Answer 1

Must keep confidential info relating to a client representation, unless client gives IC, lawyer has implicit authorization or an exception applies, 1.6a.

Question 2

What are the 1.6b exceptions to the ethical duty?

Answer 2

1. Harm prevention
2. Crime-fraud
3. Fixing crime-fraud
4. Ethics / compliance advice
5. Self-defense
6. Comply with “other law”
7. Internal conflicts checking

Question 3

What are the other exceptions to the ethical duty?

Answer 3

1. Possession of TCM, RST 119
2. False testimony, 3.3
3. Fraud in business transactions, SOX/etc.

Question 4

What must a lawyer do if they possess TCM?

Answer 4

Turn over to authorities after inspecting, RST 119.

Question 5

Can a lawyer destroy evidence or advise a client to do so?

Answer 5

IFF there’s no evidence of a pending or foreseeable proceeding. Otherwise, risks obstruction of justice, Russell.

Question 6

What options does a lawyer have if their client is going to testify falsely?

Answer 6

1. Full representation
2. Disclosure to court, 3.3
3. Silent withdrawal
4. Noisy withdrawal
5. Narrative testimony
6. Avoidance of knowledge

Question 7

If a lawyer thinks their client is going to testify falsely, and the lawyer is called into an ex parte meeting with the judge, is anything different?

Answer 7

Must inform tribunal of ALL MATERIAL FACTS, regardless of whether adverse.

Question 8

When is reporting up mandatory?

Answer 8

Under 1.13b,

(1) Constituent breached fiduciary duty
(2) Imputable illegal conduct + substantial injury to org.

UNLESS reasonably believe reporting isn’t in corp’s best interests.

Question 9

When is reporting out allowed?

Answer 9

Under 1.13c,

(1) Self-defense - but assertion of complicity, Meyerhofer
(2) Preventing / fixing fraud using services
(3) Preventing harm to org, after reporting up failed

Question 10

What’s the ACP?

Answer 10

Evidentiary rule re: compulsory testimony by lawyer/client re: communications. Requires a communication between privileged persons made i confidence for purpose of obtaining legal advice, RST 68.

Question 11

How can ACP be waived?

Answer 11

Per RST 79:

• Agreement
• Disclaimer
• Failure to object
• Voluntary disclosure
• Raising privileged comm. as issue in proceeding, Frontier Refining

Question 12

What’s the WPD?

Answer 12

Information prepared in anticipation of litigation is protected from discovery, Hickman / Roxworthy / FRCP 26b3. May still discover if show substantial need and inability to obtain an equivalent without undue hardship.