Confidentiality Flashcards
(14 cards)
When can a lawyer reveal client information under a permissive exception?
comply with law,
prevent death or harm,
prevent or rectify crime/fraud,
secure legal advice,
defend themselves,
or
detect conflicts—subject to limits.
What is the general rule of client confidentiality?
Lawyer must not reveal information relating to the representation unless:
- Client gives informed consent.
- Disclosure is impliedly authorized to carry out representation (not recognized in California).
- Disclosure is permitted by specific exceptions.
What counts as informed consent for disclosure?
Client must be fully informed of risks and benefits.
Consent must be voluntary, without coercion or duress.
When is disclosure impliedly authorized?
Lawyer may disclose information necessary to achieve client’s goals within the scope of representation.
Limitations: Cannot disclose if embarrassing, harmful, or if client instructed otherwise.
California does not recognize implied authorization.
What are the permissive exceptions to confidentiality?
Lawyer may disclose to:
- Prevent death or substantial bodily harm.
- Prevent crime or fraud using lawyer’s services.
- Prevent or mitigate harm caused by lawyer’s services.
- Secure legal advice about rule compliance.
- Defend against client accusations.
- Comply with law or court order.
- Detect conflicts when changing firms (without prejudice).
How is California’s approach to exceptions more restrictive?
California allows disclosure only to prevent a criminal act likely to result in death or substantial bodily harm.
Lawyer must first try to dissuade client and inform client of decision to disclose.
Is disclosure within a law firm allowed?
Yes. Disclosure to other lawyers within the firm is permitted to facilitate legal work.
What is the difference between California’s and the general confidentiality standards?
California protects both ‘confidences’ and ‘secrets,’ including information client wants confidential or that would be embarrassing or harmful if disclosed.
Broader than general rules protecting only information relating to representation.
Is there a duty to discuss confidentiality with clients?
No general duty.
Lawyer decides whether and how to discuss confidentiality based on professional judgment.
What is the difference between use and disclosure of confidential information?
Disclosure is covered by confidentiality rules.
Use for lawyer’s benefit or client’s disadvantage without consent is prohibited, even without disclosure.
Does the duty of confidentiality survive the end of representation?
Yes. Duty continues after representation ends and even after client’s death.
Does confidentiality apply to generally known information?
Even publicly available information is protected unless it is widely recognized.
Confidentiality still applies if learned during representation.
Must a lawyer disclose a client’s threat against a judge?
No affirmative duty.
Disclosure is discretionary if reasonably necessary to prevent death or substantial bodily harm.
Can a lawyer owe duties to non-clients?
Yes. A lawyer may owe a duty of care to non-clients in certain circumstances, but no general duty to warn third parties like in Tarasoff.
