What is a lawyer's basic duty of confidentiality under Rule 1.6(a)?
A lawyer cannot reveal information relating to the representation of a client unless:
- Client gives informed consent;
- Disclosure is impliedly authorized in order to carry out the representation; or
- Disclosure is permitted by Rule 1.6(b)
⭐️ 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.
When can a lawyer reveal information relating to the representation of a client?
To the extent reasonably necessary:
To prevent reasonably certain death or substantial bodily harm;
To prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;
To prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;
To secure legal advice about the lawyer's compliance with these Rules;
To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client;
To comply with other law or a court order; or
To detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm (but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client)
What is the difference between the duty of confidentiality, attorney-client privilege, and work product?
Duty of confidentiality: Applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.
Attorney-client privilege: Conversations between the client & lawyer (and authorized representatives) made for the purposes of obtaining legal representation that were intended to remain confidential.
Work product: Written or oral materials prepared by or for an attorney in the course of legal representation.
When does the duty of confidentiality terminate?
Continues after termination of attorney-client relationship, even after the client's death.
What must a lawyer do to prevent the inadvertent or unauthorized disclosure or access to information relating to the representation of a client?
Make reasonable efforts to prevent the access or disclosure.
What factors are considered when determining whether a lawyer's steps to prevent inadvertant disclosure of client were reasonable?
Include (but are not limited to):
- The sensitivity of the information;
- Likelihood of disclosure if additional safeguards are not employed;
- Cost of employing additional safeguards;
- Difficulty of implementing the safeguards; and
- Extent to which the safeguards adversely affect the lawyer’s ability to represent clients.
With respect to a former client's confidential information, a lawyer is prohibited from what sort of actions?
Unless the former client has consented, lawyers cannot:
- Use information relating to the representation to the disadvantage of the former client unless permitted by the Rules or information is generally known; or
- Reveal information relating to the representation unless permitted by the Rules.
If a client dies, is the lawyer authorized to disclose the client's information to the client's designated personal representative?
Yes, disclosure is impliedly authorized.
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?
No, and as such, the lawyer does not have a duty of confidentiality.
Attorney-client privilege only applies to what type of communications?
Those: between the client & lawyer (and authorized representatives) made for the purposes of obtaining legal representation that were intended to remain confidential.
⚠️ Non-legal conversations may still be protected by the duty of confidentiality, however.
Are lawyers allowed to disclose a client's information to other lawyers in the firm during the course of representation?
Yes, unless the client has instructed that particular information be confined to specified lawyers.
Does attorney-client privilege exist when the attorney is representing joint clients?
Yes, unless a dispute later arises between the clients, in which case the lawyer is permitted to disclose the communications.
What is the work product doctrine?
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)
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.
False. Attorney can, but is not required to.
When can an attorney withhold a client's psychiatric diagnosis from them?
When the examining psychiatrist indicates that disclosure would harm the client. Cannot withhold for the lawyer's own self-interest or convenience.