Client Confidentiality

Question 1

What is a lawyer’s basic duty of confidentiality under Rule 1.6(a)?

Answer 1

A lawyer cannot reveal information relating to the representation of a client unless:

1. Client gives informed consent;
2. Disclosure is impliedly authorized in order to carry out the representation; or
3. Disclosure is permitted by Rule 1.6(b)

Rule 1.6(a)

⭐️ The purpose of this rule is to encourage people to seek legal assistance and communicate fully and frankly with lawyers. This allows lawyers to represent clients effectively.

Question 2

When can a lawyer reveal information relating to the representation of a client?

Answer 2

To the extent reasonably necessary, a lawyer may disclose:

1. To prevent death or serious bodily harm
2. To prevent a client’s crime or fraud causing substantial financial harm using the lawyer’s services
3. To prevent, mitigate, or fix financial harm from a client’s past crime or fraud involving the lawyer’s services
4. To get legal advice about compliance with ethics rules
5. To defend the lawyer in a dispute with the client
6. To comply with law or court order
7. To detect/resolve conflicts from job or firm changes (only if no prejudice or breach of privilege)

Rule 1.6(b)

Question 3

Define:

Duty of Confidentiality

Answer 3

Applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.

Question 4

Define:

Attorney-Client Privilege

Answer 4

Conversations between the client & lawyer (and authorized representatives) made for the purposes of obtaining legal representation that were intended to remain confidential.

Question 5

Define:

Work Product

Answer 5

Written or oral materials prepared by or for an attorney in the course of legal representation.

Question 6

When does the duty of confidentiality terminate?

Answer 6

Continues after termination of attorney-client relationship, even after the client’s death.

Rule 1.6, comment 20

Question 7

What must a lawyer do to prevent the inadvertent or unauthorized disclosure or access to information relating to the representation of a client?

Answer 7

Make reasonable efforts to prevent the access or disclosure.

Rule 1.6

Question 8

What factors are considered when determining whether a lawyer’s steps to prevent inadvertent disclosure of client were reasonable?

Answer 8

Include (but are not limited to):

1. The sensitivity of the information;
2. Likelihood of disclosure if additional safeguards are not employed;
3. Cost of employing additional safeguards;
4. Difficulty of implementing the safeguards; and
5. Extent to which the safeguards adversely affect the lawyer’s ability to represent clients.

Rule 1.6, comment 19

Question 9

With respect to a former client’s confidential information, a lawyer is prohibited from what sort of actions?

Answer 9

Unless the former client has consented, lawyers cannot:

1. Use information relating to the representation to the disadvantage of the former client unless permitted by the Rules or information is generally known; or
2. Reveal information relating to the representation unless permitted by the Rules.

Rule 1.9(c)

Question 10

If a client dies, is the lawyer authorized to disclose the client’s information to the client’s designated personal representative?

Answer 10

Yes, disclosure is impliedly authorized.

Question 11

Is a person who contacts a lawyer for the purpose of preventing the lawyer from representing another party in a matter (i.e., to disqualify the lawyer) treated as a prospective client?

Answer 11

No, and as such, the lawyer does not have a duty of confidentiality.

Question 12

Attorney-client privilege only applies to what type of communications?

Answer 12

Those between the client & lawyer (and authorized representatives) made for the purposes of obtaining legal representation that were intended to remain confidential.

⚠️ Note: Non-legal conversations may still be protected by the duty of confidentiality, however.

Question 13

Are lawyers allowed to disclose a client’s information to other lawyers in the firm during the course of representation?

Answer 13

Yes, unless the client has instructed that particular information be confined to specified lawyers.

Rule 1.6, comment 5

Question 14

Does attorney-client privilege exist when the attorney is representing joint clients?

Answer 14

Yes, unless a dispute later arises between the clients, in which case the lawyer is permitted to disclose the communications.

Question 15

What is the work product doctrine?

Answer 15

Protects the disclosure of any written or oral materials prepared by or for an attorney in the course of legal representation, especially in preparation for litigation.

⚠️ Note: An adverse party may discover or compel disclosure of work product upon a showing of “substantial need” and “undue hardship.” FRCP 26(b)(3)

Question 16

True or False:

An attorney is required to disclose confidential information to prevent, mitigate, or rectify substantial financial harm to another that will result from a client’s actions.

Answer 16

False

Attorney can, but is not required to.

Question 17

When can an attorney withhold a client’s psychiatric diagnosis from them?

Answer 17

When the examining psychiatrist indicates that disclosure would harm the client. Cannot withhold for the lawyer’s own self-interest or convenience.

Rule 1.4, comment 7