Chapter 4 Flashcards
(38 cards)
In law, confidentiality goes hand-in-hand with (1). The attorney-client privilege is (2) and can only be waived by the (3). The advice sough must be (4)–not personal or business. (5) are also protected even if the lawyer is not retained. Privilege pertains to (6) only and is (7).
- full disclosure 2. unqualified 3. client 4. legal 5. Initial consultations 6. communication 7. indefinite (beyond representation and even death)
Privilege cover communication made (1) or (2) a lawyer, so that it covers others working on the matter. However, communications with (3) are not protected
- directly to 2. in the presence of 3. nonlawyer legal service providers
Rules in whether (1) result in the loss of privilege vary and will generally be protected if they (2).
- disclosures to third persons 2. further the representation
For communications to be protected, they must be made in a (1) without anyone present who would (2). An (3) to a private setting cannot destroy privilege. Some disclosures are specially protected and do not result in a waiver of privilege, such as (4) or (5).
- confidential setting 2. negate the privilege (family members, etc.) 3. eavesdropper 4. plea bargaining 5. settlement negotiations
(1) by corporations to cooperate has been ruled not to constitute waiver of privilege.
- forced disclosure
Privilege does not usually extend to (1) or (2), but there are exceptions. The (3) between a lawyer and client is also not privileged–there are also exceptions to this rule, such as when disclosure will lead to (4). Bringing a (5) to an attorney does not make it privileged, though documents already privileged will remain so in the (6). (7) of a crime is not privileged and in fact might be required disclosure, though its (8) may be privileged.
- identity of a client 2. client’s whereabouts 3. fee arrangement 4. other privileged information 5. preexisting document 6. attorney’s possession 7. physical evidence 8. source
(1) might destroy privilege–the rule is inconsistent between jurisdictions. Some say that it is not destroyed if a (2) was made not to disclose. Those that oppose the automatic waiver rule recognize that (3). Counsel often enter into (4) or (5) agreements where they agree not to review and to return privileged information.
- inadvertent disclosure 2. good-faith effort 3. privilege is the client’s and consent is needed to waive it 4. non-waiver 5. claw-back
3 standards cited by Federal Rules of Evidence for non-waiver in inadvertent disclosure
- disclosure is inadvertent 2. holder of privilege took reasonable steps to prevent disclosure 3. holder promptly took reasonable steps to rectify the error
Privileged information may be disclosed by a lawyer when the client calls into qustion the attorney’s (1) through (2), (3), (4) or a (5).
- professional competence 2. criminal charges 3. malpractice suit 4. disciplinary action 5. contention of ineffective counsel on appeal from a criminal conviction
When an attorney represents two clients who later become (1), communications (2) are not protected. However (3) between counsel is generall protected.
- adversaries 2. relating to the joint matter 3. pooled information
Confidential communications about a (1) or (2) a clilent is planning are not protected. The trend is toward (3).
- future crime 2. fraud 3. court-ordered disclosure
2 tests used in determining who is protected under client privilege in a corporate setting
- control group test (privilege = confodential communications between attorney and management personnel responsible for acting on behalf of corporation) 2. subject matter test (broader; all employees who communicate with attorney for legal service)
In a corporate setting, the (1), not the (2), holds and may waive the privilege. A question that comes into play, too is whether an (3) is protected under attorney-client privilege.
- corporation 2. employee 3. internal audit or investigation
The (1) resulted in circumstantial waiver of corporate attorney-client privilege in order to protect customers from injury
Sarbanes-Oxley Act
If protected communications are sought in a court proceedign, the attorney must respond to the court and (1). If the court orders the lawyer to testify/produce documents, he or she may (2) and (3). Often a court determines whether info needs to be disclosed (4).
- invoke the privilege 2. refuse 3. appeal the ruling 4. in camera
If an attorney breaks the privilege without client consent or court order, the client may seek to (1) or (2) testimony or seek (3). He may also (4) and (5).
- suppress 2. enjoin 3. dismissal of the case 4. sue for malpractice 5. file a complain with disciplinary authorities
Some states allow limited disclosure for specific purposes, such as (1).
- challenge to the validity of a will (conversations with the dead)
The (1) protects lawyers from disclosure of information prepared in anticipation of litigation. This encompases two kinds of material: (2) and (3).
- work product doctrine 2. mental impressions (unqualified privilege–strategies, theories, etc.) 3. informational material (qualified–research, other side may ask court for use of it if no other alternatives)
Work product prepares material covered only in (1), so that some material such as investigator’s reports made before there was a (2) may be discoverable.
- anticipation of litigation 2. clear indication that a lawsuit would be filed
3 alternative time frames for protection of work product
- termination at litigation 2. indefinite continuation 3. termination at litigation except as to future related litigation
Special work product rules apply to (1)–discovery of dataases under the information prong is gerneally discoverable if documents are (2), as opposed to includeing notes, being paraphrased, etc.
- electronic discovery 2. input verbatim
In cases with massive numbers of documents, lawyers can declare a (1) for large categories of documents. Most judges will (2). Paralegals can prepare a (3) claimed as privilege, stating also the (4). Work product can be (5) by implied or actual consent.
- blanket privilege 2. not allow this (need case-by-case) 3. log of documents 4. grounds for privilege, senders and recipients 5. waived
6 exceptions allowing permissive disclosure under ethics rules
- prevent reasonably certain death or substantial bodily injury 2. prevent client from committing a crime or fraud that will harm property/finances 3. prevent, mitigate, rectify injury 4. secure legal advice about the lawyer’s compliance with ethics rules 5. establish attorney’s claim or defense in a dispute between lawyer and client 6. comply with a court order/law
9 common-sense considerations about confidentiality
- code numbers instead of names 2. dispose of old files/papers properly 3. computer screens not visible 4. watch intercome/speaker phone conversation 5. segregation and labeling of privileged files 6. watch casual conversation 7. meetings in private (closed office, conference room) 8. watch cell phone conversations in public 9. watch whom emails are sent to
