Introduction to Confidentiality, Confidentiality: The Exceptions - June 13 & 15 Flashcards
(34 cards)
Is a client’s casual consent to allow a lawyer to write about her case sufficient to waive confidentiality? (Lerman)
No. A lawyer who wants to disclose sensitive information about a client based on client consent (rather than implied authorization) must ensure that the client’s consent is “informed.” (5th - 402)
How can lawyers obtain informed consent? (Lerman)
To obtain informed consent, the lawyer must communicate “adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” It would be prudent to obtain the consent in writing. (402)
If a client consents to a lawyer’s revelation of confidences, does the client waive the protection of this rule? (Lerman)
Yes, but only to the extent that the lawyer has given the client full information about the potential risks. (402)
When does a lawyer have implied authority to reveal confidential information to carry out representation of a client? (Lerman)
A lawyer often needs to disclose confidential information as part of the work of representing a client — to state facts in a complaint, to negotiate a settlement, to present an argument in court, and so on.
According to Rule 1.6, Comment 5, lawyers generally have implied authority to reveal confidences to carry out their work “except to the extent that the client’s instructions or special circumstances limit that authority.”
(403)
If a lawyer is accused of wrongdoing, must he wait until a lawsuit or a charge is filed before he may reveal information to defend himself? (Lerman)
No. The lawyer’s right to respond arises when an assertion of such complicity [in the client’s wrongdoing] has been made. Paragraph (b)(5) does not require the lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion. The right to defend also applies, of course, where a proceeding has been commenced. (448-49)
Does the self-defense exception apply if a third party makes a claim against a client and the lawyer is accused of having played a role in a client’s misconduct? (Lerman)
The lawyer may be allowed to reveal confidences even if he is not alleged to be the primary wrongdoer according to Rule 1.6, Comment 10: A charge [of wrongdoing that justifies revelation of confidences] can arise in a civil, criminal, disciplinary or other proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person, for example, a person claiming to have been defrauded by the lawyer and client acting together. (449)
Does the self-defense exception protect lawyers who disclose confidential information when responding to negative online reviews? (Lerman)
Recent authority has concluded that the answer is no. Professor Cassandra Burke Robertson, who has examined this issue, anticipates that most states will reach the same conclusion. The growth of online review platforms have led some lawyers to post responses to negative reviews. Nevertheless, negative online reviews of some lawyers have occasionally prompted the lawyers to respond, resulting in discipline for violations of Rule 1.6. (449-50)
Under what conditions may a lawyer reveal confidential information in self-defense? (Lerman)
To establish a claim against a client for unpaid fees
To defend against a claim of malpractice or other civil liability against the lawyer
To defend against a disciplinary proceeding
To defend against a criminal charge (451)
When is revelation allowed? (Lerman)
The lawyer need not wait for formal proceedings to be instituted but may reveal information to prevent such action. (451)
When authorized, how much can a lawyer reveal? (Lerman)
No more than necessary to vindicate the lawyer. The lawyer should minimize the number of people who learn the confidential information revealed, should seek a protective order, and should take other available steps to avoid the dissemination of the information. (451)
Should the lawyer inform the client before revealing confidential information? (Lerman)
Yes. The lawyer should notify the client before using confidential information in self-defense and should seek solutions that do not require the lawyer to make the revelation, but the lawyer may use the information even if the client does not consent. (451)
In the context of a client-lawyer relationship, what information is considered to be confidential under the Model Rules of Professional Conduct (MRPC)? (Q)
The MRPC define as confidential any information relating to the representation of a client, regardless of the source of the information.
In general, under the MRPC, in what circumstances is a lawyer permitted to reveal confidential information? (Q)
In general, and subject to limited exceptions, a lawyer may only reveal confidential information if (1) the client gives informed consent, or (2) the disclosure is impliedly authorized to carry out the representation.
A lawyer was representing a client regarding a criminal charge of driving while intoxicated. The lawyer read in the newspaper that the client’s blood alcohol level had been tested and was above the legal limit. The next day at brunch, the lawyer told his friend that the client’s blood alcohol appeared to have been above the legal limit.
Has the lawyer violated his duty of confidentiality under the MRPC? (Q)
Yes. The lawyer violated his duty of confidentiality. The MRPC prohibit a lawyer from, among other things, disclosing information related to the representation of a client during the lawyer’s representation of the client, unless the client has given informed consent to the disclosure, or disclosure is authorized or required by the MRPC or other law. This applies not only to matters communicated in confidence directly by the client, but also to all information related to the representation—whatever the source.
Under the MRPC, is a lawyer required to make reasonable efforts to protect confidential information from accidental or unauthorized disclosure? (Q)
Yes. The MRPC require a lawyer to make reasonable efforts to prevent the accidental disclosure of confidential information, the unauthorized disclosure of confidential information, and unauthorized access to confidential information. Some of the factors in determining reasonableness are:
the sensitivity of the information,
the likelihood of disclosure without additional safeguards,
the cost of additional safeguards,
the difficulty of using the safeguards, and
the extent to which the safeguards interfere with the lawyer’s ability to represent clients.
In general, under the MRPC, does a lawyer’s obligation of confidentiality extend to a lawyer’s former clients? (Q)
Yes. In general, under the MRPC, a lawyer’s duty of client confidentiality extends to former clients, just as to current ones. This means that even after a client-lawyer relationship has ended, the lawyer is generally prohibited from revealing information relating to the representation of the client.
In general, under the MRPC, does a lawyer’s obligation of confidentiality extend to a lawyer’s prospective clients, even if they do not actually become the lawyer’s clients? (Q)
Yes. In general, under the MRPC, a lawyer’s duty of confidentiality extends to a prospective client (i.e., a person who consults with the lawyer about the possibility of forming a lawyer-client relationship) to the same extent as to the lawyer’s current and former clients, even if the prospective client does not ultimately become the lawyer’s client.
This rule recognizes that in an initial consultation with a lawyer, a prospective client might reveal information about the prospective client’s affairs, including information necessary for the lawyer to decide whether to undertake the representation. The lawyer is not allowed to reveal this information, regardless of whether a client-lawyer relationship is formed.
Under the MRPC, does the lawyer’s general obligation of confidentiality extend to information that is not itself confidential, but which could reasonably lead a third party to discover confidential information? (Q)
Yes. Under the MRPC, the lawyer’s general obligation of confidentiality extends to information that is not itself confidential, but which could reasonably lead a third party to discover confidential information.
A lawyer’s use of a hypothetical does not violate this principle provided that the hypothetical is not reasonably likely to enable a listener to determine the client’s identity or the situation involved.
Is the lawyer’s general obligation of confidentiality under the MRPC identical to the doctrines of attorney-client privilege and work-product protections? (Q)
No. The lawyer’s general obligation of confidentiality under the MRPC is related to, but much broader than, the concepts of attorney-client privilege and work-product protections. Both the attorney-client privilege and the work-product doctrine apply in judicial and other legal proceedings as methods of excluding communications or work product from evidence.
By contrast, the MRPC’s duty to maintain client confidentiality is a much broader rule that covers all information related to representing a client, regardless of the source, and it applies in a much wider range of contexts (i.e., not merely legal proceedings).
A lawyer successfully represented a client in a high-profile criminal matter. The lawyer was contacted by a book publisher to author a book discussing the representation. The lawyer decided to write the book.
In order to write the book without violating the duty of confidentiality under the MRPC, does the lawyer need to consult the client and obtain the client’s informed consent to the use of the client’s confidential information? (Q)
Yes. The lawyer needs to consult the client and obtain the client’s informed consent. A client may expressly relieve the lawyer of the duty of confidentiality (i.e., the duty to protect information related to the representation of a client) by giving informed consent to the disclosure of the client’s confidential information. The lawyer must consult with the client before the client provides consent, and the client must be adequately informed about how the confidential information will be used or disclosed.
Here, because the book concerned the lawyer’s representation of the client, writing the book would necessarily involve disclosing information protected by the duty of confidentiality. Thus, to avoid violating this duty, the lawyer must consult the client and obtain the client’s informed consent to the use of the information after explaining how the information will be used in the book.
Under the MRPC, under what circumstances is a lawyer impliedly authorized to disclose confidential client information to carry out the representation? (Q)
Under the MRPC, a lawyer is impliedly authorized to use or disclose confidential client information if it is appropriate to do so as part of the lawyer’s representation. The MRPC do not provide a single, comprehensive definition of when disclosure is appropriate under this rule. However, the MRPC suggest that disclosure may be allowed in situations such as: (1) a lawyer admitting a fact that cannot be disputed before a tribunal and (2) a lawyer making a disclosure that contributes to a satisfactory resolution of a matter within the representation. In addition, lawyers within a firm may disclose a client’s confidential information to one another as part of the representation, unless the client has given instructions that information should be shared only with specific lawyers.
Under the MRPC, may a client give express, informed consent to the lawyer’s disclosure of information relating to the lawyer’s representation of the client? (Q)
Yes. Under the MRPC, a client may expressly give informed consent to the lawyer’s disclosure of information relating to the lawyer’s representation of the client. Giving informed consent means the client agrees to a proposed course of conduct after the lawyer has communicated adequate information and explanation about:
the material risks of the proposed course of conduct and
any reasonably available alternatives to the proposed course of conduct.
A lawyer represented a client in a routine divorce proceeding. A few months later, the lawyer was part of a family-law panel discussion hosted by a local bar association. The lawyer presented a hypothetical situation based on the client’s divorce. The lawyer did not identify the client directly or give any specific identifying details about the parties in the divorce matter.
Did the lawyer’s use of the hypothetical violate the MRPC? (Q)
No. The lawyer’s use of the hypothetical did not violate the MRPC. The MRPC require a lawyer to protect information related to the representation of a client. This protection extends to disclosures that do not themselves reveal protected information but could lead a third party to discover protected information. However, a lawyer is permitted to use a hypothetical to discuss issues related to a representation as long as there is no reasonable likelihood that a listener will be able to identify the client or situation.
Here, the lawyer used the client’s divorce case as the basis for a hypothetical scenario discussed at the panel. The lawyer did not identify the client or provide identifying details about the parties, and accordingly, there was not a reasonable likelihood that a listener could identify the client or the situation. Thus, the use of the hypothetical did not violate the MRPC.
Must a lawyer obtain a client’s permission to disclose the client’s confidential information if the lawyer is seeking confidential legal advice regarding whether the lawyer’s course of conduct complies with the MRPC? (Q)
No. Under the MRPC, a lawyer generally is not required to obtain a client’s permission to disclose the client’s confidential information if the lawyer is seeking confidential legal advice regarding whether the lawyer’s course of conduct complies with the MRPC. The MRPC permit a disclosure to be made for this purpose because of the importance of a lawyer’s compliance with the MRPC.
