Privilege and Confidentiality

Question 1

Three Types

Answer 1

Lawyer-Client Privilege

Work Product Doctrine

Duty of Confidentiality

Question 2

Lawyer-Client Privilege

Answer 2

Applies in legal roceedings where lawyer may be called as a witness to provide evidence relating to a client

For privilege to apply:
(i) client must intend for communication to be confidential; and
(ii) Communication must be for the purpose of seeking legal advice and representation

Question 3

Termination of Privilege

Answer 3

MR: Indefinite, survives client’s death

CA: Terminates when client’s estate is settled and personal representative is discharged

Question 4

Exceptions to Lawyer-Client Privilege

Answer 4

FUTURE CRIME OR FRAUD
MR: No privilege when it relates to client’s future crime or fraud
CA: Applies to future crime or fraud by anyone, not just client

DEATH OR SUBSTANTIAL BODILY HARM
CA: no privilege if lawyer reasonably believes disclosing confidential communication is necessary to prevent act resulting in death or substantial bodily harm

Question 5

Work Product

Answer 5

Material created by the attorney in anticipation of litigation

CA: writing that reflects lawyer’s impressions, conclusions, opinions, legal research or theories not discoverable under any circumstances

Other WP only discoverable if court finds denial will unfairly prejudice party seeking discovery or will result in injustice

Question 6

Duty of Confidentiality

Answer 6

Lawyer prohibited from disclosing information relating to representation of a client, unless it is authorized by (i) informed consent of client or (ii) implied authorization

Must take reasonable precautions to safeguard confidential information from inadvertent/unauthorized disclosure

Question 7

Exceptions to Confidentiality

Answer 7

DEATH OR SUBSTANTIAL BODILY HARM

MR: disclosure to prevent “reasonably certain” DSH (imminent not required)

CA: disclosure necessary to prevent “criminal act” that reasonably believe will result in DSH; must make good faith effort to persuade client not to do the act

Both: applies even if third party and not client causes potential harm or death

FINANCIAL HARM

MR: Prevent crime/fraud that will result in substantial injury to financial interests/property of another and client used attorney’s services

CA: does not apply

Question 8

Confidentiality - Prospective Clients

Answer 8

Generally, owed to prospective client who discusses possibility of hiring lawyer; cannot use or reveal information from consultation