MRPC 1.6 and 3.3: CONFIDENTIALITY OF INFORMATION Flashcards
(44 cards)
What are the different policy perspectives re: Rule 1.6 that we studied in class?
Pepper: Regulated, liberal democracy, “first class citizenship” depends on access to the law and lawyers
Equal access to the law
+ Requires access to lawyers to interpret
+ Autonomy → Access → Broad Confidentiality
Luban: Self-protection
+ Autonomy is not the only value (it’s great) because when you give clients autonomy they may use it to do bad things.
+ There should be exceptions. Exceptions should be mandatory.
True or False: Rules 1.6, 1.16 and 3.3 are intertwined
True.
IF YOU TALK ABOUT 1.6, YOU MUST MENTION 3.3 AND 1.16
Rule 3.3: Candor towards Tribunal
Rule 1.16: Declining or Terminating Representation
What is Rule 1.6(a) and is it mandatory?
If Lawyer-Client Relationship exists, go to Rule 1.6(a): Mandatory
Never reveal information relating to the representation of a client UNLESS
+ client gives informed consent (permissive);
+ disclosure is impliedly authorized in order to carry out the representation (narrow circumstances); OR
+ disclosure is permitted by (b) exceptions
Why is Rule 1.6(a) so broad?
Why such a broad rule?
[2] In order to help clients, we need to know their private info. Clients are more apt to share if they are assured that there is confidentiality
Loyalty to clients to keep affairs private → trust circle created and strengthened
More information provided by client → better able to get the job done
Competitive edge for non-lawyer professionals → accountants, therapists, police officers don’t have this strict of a confidentiality policy
Lawyers know that clients will follow their advice
True or false: Privilege and confidentiality are the same according to MRPC
False
[3) Privilege and Confidentiality are two different things → do not use these terms interchangeably
+ Attorney Client privilege: work product and doctrine
+ Confidentiality: established in professional ethics
1.6(a) Applies not only to matters communicated in confidence by the client AND all information relating the representation, no matter its source
In relation to Rule 1.6(a), are hypotheticals from one lawyer to another lawyer permissive?
Hypotheticals are permissible SO LONG AS no reasonable likelihood that listener will be able to ascertain the identity of client or situation
How do we know if the information is related to the representation of the client?
Related to the representation has two tests:
1) “But for” test – Majority — VERY BROAD
But for the attorney-client relationship, the lawyer would not have known the information.
2) “Subject matter” – Minority
Must know the subject matter of the representation
Unless you know it relates to the subject matter of the representation, then you cannot answer.
Give an example of each test to determine if client information is related to representation of the client under the 1.6(a)
1) But for test
Client mentions to his divorce lawyer while lawyer is making coffee, that he made some bad investments and wants to sue his financial planner → this is confidential under but for test, even if info is unrelated to reason for hiring representation
2) Subject matter
Problem 2-2 on p.65: because we don’t know if the representation relates to parking meters, we cannot say definitively whether the information would be confidential
What are disclosure exceptions under 1.6(a)?
(a) informed consent: if the client agrees after knowing the explanation behind the disclosure, the advantages and disadvantages, and alternatives
Rule 1.0(e): advantages, disadvantages, alternatives
(a) implied authority: [5) except to the extent that the client’s instructions or special circumstances limit that authority, a lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation.
[4) Prohibition applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. Hypos are OK IF there is no reasonable likelihood where listener could figure out the identity of client or situation
[5] Lawyers in a firm may, in the course of the firm’s practice, disclose to each other information relating to client of the firm, UNLESS the client has instructed that particular information be confined to specific lawyers.
What does Rule 1.6(b) say?
If disclosure is related to representation, move to 1.6(b)’s Exceptions to Rule 1.6(a)
DO NOT EVEN CONSIDER THE EXCEPTIONS UNTIL YOU HAVE DETERMINED THAT CONFIDENTIALITY ATTACHES
True or false: Colorado Rule 1.6 is much narrower than MRPC 1.6(b)(1)
False CO Rule 1.6: Includes ANY crime, not just violent/GBH \+ Oldest way that CO deviates from ABA \+ Broader exception \+ Only applies to future-looking crime
What does 1.6(b)(1) exception provide? Give an example.
1.6(b)(1) – James Bond Caveat:
A lawyer may reveal information related to the representation to the extent the lawyer reasonably believes to be necessary to prevent reasonably certain death or substantial bodily harm:
+ Applies to all exceptions
What do 1.6(b)(2) and (3) address? Are they mandatory?
1.6(b)(2) and (b)(3) ENRON exceptions → NOT MANDATORY
+ ABA additions: Allows lawyers to make exceptions so legislature doesn’t get involved
(2) To prevent (future looking)
Crime or fraud
Reasonably certain
Furtherance of which client has used or is using lawyer’s service
(3) To prevent, mitigate, or rectify (includes past conduct)
Crime or fraud
Reasonably certain
+ To result in substantial injury to the financial interests or property
+ Furtherance of which the client has used or is using the lawyer’s services
DOES NOT APPLY when person who has committed a crime or fraud thereafter employs a lawyer for representation concerning that offense
What does Rule 1.6(b)(4) address re: confidentiality exceptions?
1.6 (b)(4) Secure legal advice about whether you are complying with the Rules
Lawyer seeks counsel under preamble terms (client/lawyer relationship) to help with an ethical dilemma. Client finds out that you sought legal advice → tries to sue you
Cannot breach client info with a legal ethics expert, BUT you can consult a legal ethics expert about a specific rule.
Rule 1.6(b)(5) has two parts and four exceptions to confidentiality. Explain them in relation to the Meyerhofer case.
Rule 1.6(b)(5) 2 parts, 4 exceptions
Part 1: Offensive
Exception 1: To establish a claim on behalf of the lawyer in a controversy between the attorney and the client
Exception 2: When you want to sue your client
[8] You could not sue without this rule to collect unpaid fees because you would be barred from discussing the content of the representation, even to a court
Part 2: Defensive
Exception 3: To establish a defense on behalf of the lawyer in a controversy between the lawyer and the client
Client accuses you of malpractice → you want to file an answer
Exception 4: To establish a defense to a civil claim or criminal charge against the lawyer based upon conduct in which the client was involved
+ NOT between the lawyer and client, between lawyer and state
Ex: US attorney charges client with crime, you are charged with aiding and abetting → how else would you defend yourself?
Exception 5: To respond to allegations in any proceeding concerning the lawyer’s representation of the client
+ Disciplinary complaint → protecting yourself
+ Violations of the rule’s proceedings
How does the Meyerhofer case incorporate Rule 1.6(b)(5) regarding disclosure?
Meyerhofer
+ Can lawyers reveal client confidences to defend themselves against actions of wrongful conduct? YES
+ Goldberg → 30-page interoffice memo, voicing his concerns about recent IPO representation, then leaves the firm
+ Goldberg still charged, discloses information during SEC investigation
+ Charged w.violations of Canons 4 and 9
4) Preserving client confidentiality
9) Avoiding appearance of professional impropriety
BUT Goldberg applied MRPC 1.6(b)(5): not acting in bad faith b/c lawyers have a right of self-defense, which permits them to disclose confidential information, even under circumstances that might otherwise give an appearance of professional impropriety
AND this prevents Goldberg from representing a party in action against former client if circumstances give the appearance that there’s a violation of duty of confidentiality with respect to former client’s confidential information
Was this disclosed to a reasonably necessary level/appropriate? 30-pages, extensive detail → TMI or great evidence in his defense?
What is Rule 1.6(b)(6) exception? Is it mandatory?
Rule 1.6(b)(6) To comply with other law/court order
Lawyer may reveal information… discretionary
+ Discretionary under the law, however but lawyer can be held in contempt of court if a judge issues an order
+ Most lawyers will not commit contempt of court, comply with the judge
Rare considerations:
Grave injustice to client/irreparable harm
How valuable is the client?
Many states have mandatory disclosure re: domestic violence/child abuse
What is Rule 1.6(b)(7) re: Confidentiality and Disclosures? Is it common? In what scenario would this be applied?
Rule 1.6(b)(7) To detect and resolve conflicts of interest: mobility focused
+ Conduct must be reasonable
+ You can release conflict checking info, (most likely to another firm), unless that info is prejudicial to one of your clients
Factual examples when conflict checking CANNOT be revealed
+ Nature of your work → You’re a big shot divorce lawyer/criminal prosecutor/bankruptcy attorney
+ Rare and temporal
+ Watch for the timeline WHEN lawyer will reveal
How does a lawyer determine if a lawyer has made reasonable efforts to prevent inadvertent or unauthorized disclosure (or unauthorized access to) client information relating to a client under Rule 1.6(c)?
Give an example
Rule 1.6(c): A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.
[18] [19] Not a violation IF (rule does not impose strict liability): “reasonable regime” – you just have to conduct “reasonable efforts” → even if lawyer was hacked, no liability
Factors to determine reasonableness:
+ Sensitivity of the information: Client identity is generally sensitive, but NOT ALWAYS
+ Likelihood of disclosure if additional safeguards are not employed: Depends on if the information will be in the public domain
+ The cost of employing additional safeguards
+ The difficulty of implementing the safeguards
+ The extent to which the safeguards adversely affect the lawyer’s ability to represent clients
+ Clients can require their lawyers to implement special security measures beyond this rule
+ Clients can give informed consent to use communication otherwise prohibited by the rule
+ This rule doesn’t cover federal laws that oversee data privacy
Ex: Should all attorney-client emails be encrypted? Depends on the information sensitivity. What is the cost of employing the encryption? $0, so it’s reasonable from a cost-effective strategy. But what about opportunity cost? Implementing a cyber-security system for all employees and clients may cost you future business
Rule 1.6 Hypo: Lawyer on vacation out of the country gets stopped at border control en route back: “Do you have a smart device?” Yes. “Please hand it over.” OK. “Please unlock your device.” –> what should he do?
1) If you do not have a passcode on your phone, you can be subject to litigation under Rule 1.6(c)
2) 1.6(a) Is it a work product (privilege) that’s being reviewed or is it confidential information? Privilege and confidentiality are two different things, privilege is not a mandatory thing whereas confidentiality is. Put a clause in your client agreement that indicates if travel for counsel occurs, certain confidential information may be scanned at borders, thus making the breach allowed.
3) 1.6 (b)(5) if the client sues you for malpractice, use the self-defense exception. You didn’t have an option crossing borders back into the U.S.
4) 1.6 (c) Assuming you’re encrypting all important documents, a simple scan of emails on your phone wouldn’t be an issue of disclosure. 2-factor authentication on all work devices.
5) Do not allow employees to take their work equipment on vacation OR require all employees to keep a separate device for travel that limits what’s included (“burner phone”)
If none of the 1.6(b) exceptions apply, and 1.6(c) also doesn’t apply, are there any MANDATORY exceptions to disclosure of confidential information?
Rule 3.3 will involve interplay of 1.6 → If 3.3(a) and 3.3(b), you’re back to 1.6 (a) and (c) re: confidentiality
What is Rule 3.3(a) and is it Mandatory?
Rule 3.3: Candor Towards the Tribunal (MANDATORY)
(a) A lawyer SHALL NOT knowingly:
(1) make a false statement of fact or law in a tribunal/hearing, or fail to correct a false statement of material fact or law
(2) fail to disclose to the tribunal legal authority, in the controlling jurisdiction, known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel
(3) offer evidence that the lawyer knows to be false:
If lawyer offers false material evidence, and the lawyer comes to know it’s false, reasonable remedial measures must be taken to correct.
Explain Rule 3.3(b) in relation to confidentiality and candor with the tribunal. Is it mandatory?
3.3 (b) If a lawyer representing a client knows that a person intends to engage is engaging or has engaged in criminal or fraudulent conduct related to the proceedings shall (MANDATORY) take reasonable remedial measures, including, if necessary disclosure to the tribunal
+ If you come to know of the falsehood before you file, you can refuse to file, UNLESS your client is a defendant in a criminal trial
+ NO criminal attorney can stop his client from testifying at his own case → protected by Constitution
+ You also cannot stop your client from committing perjury, but you can take reasonable remedial measures after the perjury has been committed.
+ Obligation to correct the court record generally trumps the confidentiality obligation to the court
How did Nix v. Whiteside relate to Rule 3.3(b)?
Nix v Whiteside
1.0(f) How do we define “knowingly”?
+ Actual knowledge of the fact in question
+ May be inferred from circumstances
Here, the client didn’t say for certain that he did or did not see a gun → “If I don’t say I saw a gun I’m dead”
We can infer knowledge, thus the lawyer knew
3.3(b) application comments
[7] (a) and (b) apply to all lawyers, including defense counsel in criminal cases
[11] If the lawyer cannot get the client to correct false testimony that has already been given AND the lawyer cannot withdraw OR if withdrawal will not remedy the situation, lawyer must disclose perjury.
[13] If the lawyer finds out about false information AFTER jury verdict, there is an imposed time limit on obligation to rectify.
