Privilege, work product and Confidentiality

Question 1

Duty of Confidentiality definition

Answer 1

An ethical duty that prohibits general disclosure of all information gained
from any source relating to the representation of the client.

Question 2

Attorney-client privilege definition

Answer 2

An evidentiary rule that prevents compelled disclosure of information communicated in confidence by the client to the attorney.

Question 3

Inadvertent Disclosure

Answer 3

Does not waive the privilege if
reasonable steps were taken to prevent disclosure and are promptly taken to rectify the error.

Question 4

Confidential communications are not protected by the privilege if they are:

Answer 4

-Made to enable or aid crime or fraud

-Relevant to a dispute between the client (or former client) and the lawyer

-Relevant to a dispute between parties who claim through the same deceased client OR

-Relevant to a dispute between former co-clients who are now adverse to each other.

Question 5

Work Product Doctrine definition

Answer 5

The work product doctrine protects documents prepared by or for a party or the party’s lawyer in
anticipation of litigation.

Question 6

Types of work product (definition and discoverability)

Answer 6

1. Opinion work product

-Definition: A lawyer’s mental impressions,
conclusion, and trial tactics
-Discoverability: Almost never discoverable

2. Ordinary work
   product

-Definition: All materials created in anticipation of
litigation that contain facts related to the
case.
-Discoverability: Discoverable if the party seeking
disclosure shows a substantial need
and undue hardship

Question 7

Under the MRPC, a lawyer is prohibited from disclosing any information relating to the representation of a
client unless:

Answer 7

-Client gives informed consent

-Impliedly authorization

-Another specific exception applies

(these specific exemptions will be on a separate card)

Question 8

Specific exceptions to the prohibition on disclosure of any information relating to the representation of a client:

Answer 8

1. Reasonably certain death or substantial bodily harm.
   NOTE: harm does NOT need to be imminent.
2. *Prevent crime/fraud reasonably certain to cause substantial financial/bodily injury where lawyer’s services are used to further illegal activity.
3. Prevent/ mitigate/rectify a substantial injury from client’s crime, where lawyer’s services used
4. legal advice about the lawyer’s compliance with ethics rules
5. Controversy between lawyer and client.

-Lawyer reasonably believes necessary to (1) establish a claim or defense on the lawyer’s behalf, (2) establish defense to criminal charge/civil claim against the lawyer [based on conduct in which the client was involved], OR (3) respond to allegations in any proceeding concerning the lawyer’s representation of the client.

5. Compliance with other law or court order
6. Detecting/resolving conflicts of interest arising from a change of employment—unless the
   disclosure will compromise the lawyer-client privilege or otherwise prejudice the client

IMPORTANT NOTE: The above exceptions to the duty of confidentiality are discretionary. But if the lawyer can
avoid assisting a client’s crime or fraud only by disclosing information that is within the
lawyer’s discretion to disclose, then the lawyer must do so.