Pt. 3 Client Confidentiality

Question 1

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

Answer 1

representation; informed consent; impliedly

Question 2

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).

Answer 2

attorney-client privilege; communications; attorney and client

Question 3

ethical day of confidentiality prohibits an attorney from __________ revealing info relating to the representation of client

Answer 3

voluntarily

Question 4

ethical duty of confidentiality covers ___ kinds of info than the a-c privilege

Answer 4

more

Question 5

attorney-client privilege concerns only the ______ of information, while the ethical duty of confidentiality concerns both the _______ and the ___ of info

Answer 5

disclosure; disclosure and use

Question 6

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

Answer 6

disclosing; disadvantage

Question 7

client in attorney-client privilege defined

Answer 7

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)

Question 8

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.

Answer 8

high-ranking; direction; legal advice; scope

Question 9

attorney defined in attorney-client privilege

Answer 9

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.

Question 10

types of mechanical details of an a-c relationship that the privilege does NOT cover —-

Answer 10

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

Question 11

a-c privilege covers both _____ and ______ communications

Answer 11

oral and written

Question 12

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

Answer 12

preexisting

Question 13

confidential defined for purposes of a-c privilege

Answer 13

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

Question 14

presence of 3rd party and a-c privilege

Answer 14

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

Question 15

eavesdroppers and a-c privilege

Answer 15

does not destroy a-c privilege; can be prohibited from testifying about a confidential (privileged) communication

Question 16

who is the holder of the a-c privilege

Answer 16

the client–thus, the client is the one who can claim or waive the privilege

Question 17

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

Answer 17

failure; intentional

Question 18

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)

Answer 18

legal services

Question 19

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

Answer 19

must

Question 20

a-c privilege continues for how long?

Answer 20

indefinitely; even survives death of client (exceptions relating to the deceased’s disposition of property)

Question 21

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

Answer 21

engage in or assist; relevant; joint; competency or intention

Question 22

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

Answer 22

litigation or in anticipation of litigation

Question 23

a lawyer’s _____ ______ or _______ are immune from discovery or compelled disclosure regardless of the opposition’s need unless the immunity has been waived

Answer 23

mental impressions or opinions

Question 24

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 ________ __________

Answer 24

confidentiality; generally known

Question 25

information is not generally known when it can be obtained only by means of ______ ______ or ______ ______ or expense

Answer 25

special knowledge OR substantial difficulty

Question 26

8 exceptions to duty of confidentiality (generally) —

Answer 26

(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

Question 27

informed consent exception to duty of confidentiality — an attorney may ___ or ____ confidential info if the client gives informed consent

Answer 27

reveal or use

Question 28

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

Answer 28

representation

Question 29

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)

Answer 29

reasonably believes; certain

Question 30

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

Answer 30

reasonably certain

Question 31

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

Answer 31

protect; necessary; need; protective orders

Question 32

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

Answer 32

necessary

Question 33

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

Answer 33

substantive; minimum; compromise; detect and resolve

Question 34

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

Answer 34

reasonable efforts (determined by considering factors like the sensitivity of client’s info, cost of additional safeguards, and difficulty of implementing safeguards)