MR: Client Confidentiality

Question 1

General Rule

Answer 1

A lawyer must not reveal any information relating to the representation of the client.

A lawyer may, however, reveal such information if the client gives informed consent, or if the disclosure is impliedly authorized to carry out the representation.

Question 2

Differences between the Ethical Duty of Confidentiality v. Attorney-Client Privilege

Answer 2

1) WHAT THEY PROHIBIT
The attorney-client privilege is an exclusionary rule of evidence law (a court cannot to compel the revelation of confidential communications between an
attorney and a client.)

The ethical duty of confidentiality prohibits an
attorney from VOLUNTARILY revealing information relating to the representation of a client.

2) WHAT THEY PROTECT
The attorney-client privilege protects only confidential communications between the attorney and client.

The ethical duty covers not only confidential communications, but any other information that the attorney obtains relating to the representation of the client, no matter what the source of that information.

3) DISCLOSURE V. USE
Attorney-client privilege concerns only the disclosure of information. The ethical duty of confidentiality concerns both the disclosure and use of information.

An attorney can be disciplined for disclosing a client’s confidential information
without the client’s informed consent, or for using confidential information to
the disadvantage of a client without the affected client’s informed consent

Question 3

Ethical Duty of Confidentiality and Exception

Answer 3

1) Duty Not Destroyed by Presence of Third Party
The presence of a non-privileged third person does not necessarily destroy an attorney’s duty of confidentiality.

Confidential information remains confidential even if it is known to others, unless the information becomes generally known. Information is not generally known when it can be obtained only by means of special knowledge or substantial difficulty or expense.

2) Exceptions to the Duty of Confidentiality
- Client’s Informed Consent
- Implied Authority
- Disclosure to Prevent Death or Substantial Bodily Harm
- Disclosure to Prevent or Mitigate Substantial Financial Harm
- Dispute Concerning Attorney’s Conduct
- Disclosure to Obtain Legal Ethics Advice
- Disclosure to Detect and Resolve Conflicts of Interest
- Disclosure Required by Law or Court Order

3) Protecting Confidential Information
A lawyer must make reasonable efforts to protect a client’s confidential information from unauthorized disclosure by the lawyer and those under the
lawyer’s supervision, and from unauthorized access by third parties.

The reasonableness of the lawyer’s efforts is determined by considering such factors as the sensitivity of the client’s information, the cost of additional
safeguards, and the difficulty of implementing the safeguards.

Question 4

Basic Rule: Attorney Client Privilege

Answer 4

The attorney-client privilege prohibits a court or other governmental tribunal from compelling the revelation of confidential communications between an attorney (or an attorney’s agent) and a client (or a client’s agent) if the subject of the communication concerns the professional relationship between the attorney and the client.

Question 5

Who is a “client”?

Answer 5

A “client” means a person or entity that seeks legal services from an attorney.

The privilege covers preliminary communications leading up to an attorney-client relationship, even if no such relationship develops.

Question 6

Corporate Clients

Answer 6

When the client is a corporation, the privilege covers communications between
the lawyer and a high-ranking corporate official.

It also covers communications between the lawyer and another corporate employee if the following conditions are met:

1) The employee communicates with the lawyer at the direction of the
employee’s superior;

2) The employee knows that the purpose of the communication is to obtain
legal advice for the corporation; and

3) The communication concerns a subject within the scope of the employee’s duties to act for the corporation

Question 7

Who is an “attorney”?

Answer 7

An “attorney” means a person who is authorized (or whom the client reasonably believes to be authorized) to practice law in any state or nation.

However, for the privilege to apply, the attorney must be acting as an attorney, not in some other capacity, such as a friend, business advisor, or member of the family

Question 8

What is a “communication”?

Answer 8

The term “communication” covers information passed from the client to the attorney and from the attorney to the client.

It also covers information passed to or from the agents of either the attorney or the client.

Question 9

Mechanical Details of Relationship

Answer 9

Usually the attorney-client privilege does not cover the mechanical details of the relationship, such as the identity of the client, the fee arrangement between the attorney and client, and the bare fact that the attorney is
acting for the client.

But these mechanical details can be protected by the privilege if revealing them is tantamount to revealing a privileged communication.

Question 10

Preexisting Documents and Things

Answer 10

The attorney-client privilege covers both oral and written communications.

BUT, the client cannot protect a preexisting document from discovery simply by turning it over to the attorney.
If the document or thing would be discoverable in the client’s hands, it is equally discoverable in the attorney’s hands.

Question 11

What is “confidential”?

Answer 11

For a communication must be “confidential,” it must have been made by a means not intended to disclose the communicated information to outsiders, and the communicating person must reasonably believe that no outsider will hear the contents of the statement.

Question 12

The presence of third parties on confidentiality

Answer 12

The presence of a third party will not destroy the confidentiality if the third party was present to help further the attorney-client relationship.

However, the third party need not play a direct role in the communication and may be present because of the client’s psychological needs (e.g., a family member accompanying the client)
- BUT NOT a friend there to go out with the client afterwards

Question 13

Waving the attorney-client privilege

Answer 13

Client is the only person who can waive this privilege

A waiver consists of a failure to claim the privilege when there is an opportunity
to do so, or the intentional revelation of a significant portion of the privileged
communication.

The client may also waive the privilege by asserting a claim or defense that
puts the legal services at issue in the case.
E.g., where a defendant appeals a criminal conviction on the basis of ineffective assistance of counsel at trial, the communications between the defendant and the trial attorney are not privileged

Question 14

How long does the Attorney-Client privilege last

Answer 14

The attorney-client privilege continues indefinitely.

Termination of the relationship does not terminate the privilege.

The privilege even survives the death of the client, subject to exceptions relating to the deceased’s disposition of property

Question 15

Exceptions to the Attorney-Client privilege

Answer 15

The attorney-client privilege does not apply if:

a. If the client seeks the attorney’s services to engage in or assist a future crime or fraud.
b. Communications that are relevant to an issue of breach (by either the attorney or the client) of the duties arising out of the attorney-client relationship.
c. In civil litigation between two persons who were formerly the joint clients of the attorney.
d. The attorney can furnish evidence about the competency or intention of a client who has attempted to dispose of property by will or inter vivos transfer

Question 16

Ethical Duty of Confidentiality

Answer 16

The ethical duty of confidentiality applies in every context in which the attorney-client privilege does not apply.

The ethical duty also covers a broader range of information than the privilege.

The ethical duty concerns not only the disclosure of information, but also the use of information to the disadvantage of a client, a prospective client, or a former client.

Question 17

Ethical Duty of Confidentiality and Third Parties

Answer 17

Unlike the attorney-client privilege, the presence of a nonprivileged third person does not necessarily destroy an attorney’s duty of confidentiality.

Confidential information remains confidential even if it is known to others, unless the information becomes generally known.

Whether information is generally known depends on all the surrounding circumstances, but information is not generally known when it can be obtained only by means of special knowledge or substantial difficulty or expense.

Question 18

Exceptions to the Duty of Confidentiality

Answer 18

1) Informed Consent
2) Implied Authority
3) Disclosure to Prevent Death or Substantial Bodily Harm (At the lawyer’s discretion, it is not required), doesn’t matter what the cause death is, but it can’t be a death that has already happened)
4) Disclosure to Prevent or Mitigate Substantial Financial Harm (e.g., preventing a client from committing fraud, or if the disclosure can prevent consequent financial harm)

5) Dispute Concerning Attorney’s Conduct
Here, the attorney should:
(1) reveal only what is necessary,
(2) attempt to limit the disclosure to those who need to know it, and
(3) obtain protective orders or take other steps to minimize the risk of unnecessary harm to the client.

6) Disclosure to Obtain Legal Ethics Advice

7) Disclosure to Detect and Resolve Conflicts of Interest
Four conditions:
(1) Disclosure made only after substantive discussions regarding the new relationship have occurred;
(2) Disclosure must be minimal necessary to detect any conflicts of interest;
(3) Disclosed information must not compromise the attorney-client privilege or otherwise prejudice the clients; and
(4) Disclosed information may be used only to the extent necessary to detect and resolve any conflicts of interest.

8) Disclosure Required by Law or Court Order

Question 19

Protecting Confidential Information

Answer 19

A lawyer must make reasonable efforts to protect a client’s confidential information from inadvertent or unauthorized disclosure by the lawyer and those under the lawyer’s supervision, and from unauthorized access by third parties.