Confidentiality Flashcards
(32 cards)
Confidentiallity when representing an organization
The ethical duty of confidentiality runs to the organization itself, rather than its constituents.
if the lawyer hears from the CFO that the corporation is engaging in criminal activities, the lawyer has a duty to disclose allegation to the president and directors and keep the allegations secret from any other employees.
When can a lawyer reveal confidential info about an organization?
If highest authority fails to insist or act upon a clear violation of law AND the lawyer reasonably certain that the failure to act will result in substantial injury to the corp. [NOT to the public]
What info is confidential
ALL information relating to the representation of a client AND any information that could reasonably lead to the discovery of confidential information by a 3rd party
Can public information or info generally known be confidential?
Yes
Can non-privileged info be confidential?
Yes
Can info the client told to a 3rd party be confidential?
Yes
Does a website form inviting people to submit info about representation create an obligation of confidentiality?
Yes, even if it doesn’t create a full A/C relationship
How long does the obligation of condifentiality last?
Even after the CL dies
What are the broad exceptions to the duty of confidentiality?
- Informed consent
- Disclosure is impliedly authorized
Specific circumstances that lead to exceptions to the confidentiality requirment
Usually based on the need to prevent a greater harm.
MR 3.3(b) to correct false evidence or a client’s criminal or fraudulent act relating to a proceeding.
Compliance w/ a court order
Zone of danger of a violation of confidentiality
- War stories. Can the listener determine who the client is?
- Online postings, including responding to criticism.
- “Significant matters” on firm’s website
- Media interviews
In a privileged conversation, Client tells Martyn where he was on the night in question. Can Client now be compelled to testify as to his whereabouts? What if Client has died?
While death has no effect on privilege, just because a conversation is privileged, does not mean the topic of that conversation is privileged
When is communication between a corporate cl priviliged?
- the communication is otherwise priviliged
- Communication is between an asgent or the org and a privileged person
- communication concerns a legal matter of interest to the organization
- the info is diclosed only to a) a privileged person & other agents who reasonably need to know
How low down the corporate ladder does the privilege go?
Any employee, if it’s necessary to secure legal advice, can be protected by corporate privilege.
What is an Upjohn warning?
A corporate Miranda, used to advise a consitituent that you represent the organization and not them if their interest may be adverse.
Warnings are given to make sure that the employee is not under the impression that the lawyer is also representing them.
Obligations when dealing w/ an unrepresented person
Especally when Upjohn is concerned
- You can’t imply you are disinterested
- Obligation to clarify your role to one who might misunderstand
- Can’t give legal advice except the advice to secure counsel.
What are the specific warnings you must give for Upjohn
- ID the client and the matter. (I represent X with respect to Y)
- The client’s expectations: cooperate and tell the truth.
- Confidentiality/priv belongs to the corporation, not you, and corp has the unilateral power to waive.
- I don’t represent you.
- You may retain separate counsel.
What is work product
Tangible or intangible documents prepared in anticipation of litigation
Opinion work product: consists of the opinions or mental impressions of a lawyer; all other work product is ordinary work product.
How is work product different from
- Applies to communications w/ 3rd parties
- Applies to attorney work, like research
- Applies only in the litigation context, not counseling.
- Only those disclosures likely to reach adversaries waives it.
- It can be discoverable & introduced into evidence under some circumstances
Does the Crime-Fraud exception apply to communications about past crimes & frauds?
No, only for ongoing or future crimes
Rule 1.6(B)(1)
A lawyer may reveal confidential info to the extent the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily injury.
Lawyer isn’t subject to damages
What must a lawyer do before envoking 1.6(B)(1)?
Make a feasible, good faith, attempt to persuade the CL not to act, to warn the victem, or to take other action to prevent the harm and advise the client of the lawyer’s ability to use or disclose information.
How much info is needed to apply 1.6(B)(1)?
Threat of harm must be specific an beyond a reasonable doubt. Info must be directly known to the lawyer.
What is the difference between 1.6(B)(1) and the other exceptions provided by rule 1.6?
There is no requirement that the client used the attorney’s services to cause the harm
