Duty of Confidentiality

Question 1

Elements of AC Privilege

Answer 1

(a) a communication
(b) made in confidence
(c) b/w lawyer and client
(d) seeking legal advice

Question 2

Elements of AC Privilege

Answer 2

(a) a communication
(b) made in confidence
(c) b/w lawyer and client

Question 3

Definition of “communication”

Answer 3

Restatement 69: any expression conveyed from one privileged person to another and any doc/record revealing the expression

Question 4

Meaning of b/w A&C

Answer 4

Includes the client, lawyer, agents of either.

Does NOT apply to whole company, only those with decision-making power BUT can extend to nonlawyers (ex: IRS agent who worked for firm as translator)

Question 5

Meaning of b/w L&C

Answer 5

Includes the client, lawyer, agents of either.

Does NOT apply to whole company, only those with decision-making power

Question 6

What is the scope of AC privilege?

Answer 6

Applies to communications AND any info the lawyer acquires as a result of those communications BUT doesn’t apply if you’ve altered evidence

Question 7

Who holds the AC privilege?

Answer 7

The client but the attorney can assert on client’s behalf (thus client is the only one that can waive)

Question 8

How does a client waive AC privilege?

Answer 8

When client voluntarily discloses or consents to a disclosure of any significant part of the matter or communications

Question 9

Can an attorney accidentally or negligently waive AC privilege?

Answer 9

Yes

FRE 502 - in a fed or state proceeding, disclosure does NOT operate as a waiver if:

(a) the disclosure if inadvertent
(b) the holder of the privilege or protection took reasonable steps to prevent disclosure; and
(c) the holder promptly took reasonable steps to rectify the error (like following FRCP)

NOTE: lawyers can protect themselves through claw-back agreements (contracts that say they won’t tell on attorney for negligently/accidentally waiving privilege

Question 10

Can an attorney accidentally or negligently waive LC privilege?

Answer 10

Yes

FRE 502 - in a fed or state proceeding, disclosure does NOT operate as a waiver if:

(a) the disclosure if inadvertent
(b) the holder of the privilege or protection took reasonable steps to prevent disclosure; and
(c) the holder promptly took reasonable steps to rectify the error (like following FRCP)

NOTE: lawyers can protect themselves through claw-back agreements (contracts that say they won’t tell on attorney for negligently/accidentally waiving privilege

Question 11

Exceptions to AC

Answer 11

1. Client/lawyer disputes
2. Lawyer as Attesting Witness
3. Crime/Fraud exception

Question 12

What are client-lawyer disputes?

Answer 12

Suits between client and lawyer (ex: malpractice)

Question 13

What is the lawyer as attesting witness?

Answer 13

If lawyer is attesting to a marriage or will

Question 14

What is the crime/fraud exception?

Answer 14

(a) communications made for the purpose of getting advice for the commission of a fraud crime (so disclosures of PAST wrongdoings are still protected by privilege, but NOT FUTURE)
(b) applies when the attorney isn’t aware client is getting advice for an illegal purpose

Question 15

2 approaches to the exception

Answer 15

(1) Restatement: applies if the client is using the lawyer’s services to engage in crime or fraud AND the client actually tries to commit it (client doesn’t have to be successful)
(2) Alternative: applies if there’s prima facie evidence that client was seeking advice for crime/fraud but doesn’t matter if client tried it or not

Question 16

What is the duty of confidentiality? R.1.6

Answer 16

A lawyer can’t reveal info about representing the client UNLESS:

(1) the client gives informed consent,
(2) the disclosure if impliedly authorized in order to carry out the representation
(3) the disclosure if permitted by (b)

Question 17

Does the duty of confidentiality apply to prospective clients as well?

Answer 17

Yes under R.1.18 AND former clients under R.1.19 unless exception applies or the info is generally known

Question 18

Permissible (but not required) exceptions to duty of confideniality

Answer 18

R.1.6(b)

(a) to prevent reasonably certain death or substantial bodily harm
(b) 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 used or is using the lawyer’s services
(c) to prevent, mitigate, or rectify substantial injury to the financial interests or property of another
(d) to secure legal advice about the lawyer’s compliance with these rules
(e) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client
(f) to comply with other law or a court order
(g) 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 (only if the revealed info wouldn’t compromise A/C privilege or prejudice client