Chapter 5 Conflicts of Interest -Part 1 Spring 2015
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Transcript of Chapter 5 Conflicts of Interest -Part 1 Spring 2015
C. 4 Lawyer's Duty of Confidentiality 1
Professional Responsibility Ch. 4 The Lawyer’s Duty of
Confidentiality George W. Conk Adjunct Professor of Law & Senior
Fellow Stein Center for Law & Ethics Room 409 212-636-7446 [email protected] April 7, 2015
FR Evid 501 Privilege The common law — as interpreted by
United States courts in the light of reason and experience — governs a claim of privilege unless any of the following provides otherwise:- the United States Constitution;- a federal statute; or- rules prescribed by the Supreme Court.But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.
C. 4 Lawyer's Duty of Confidentiality 2
Two evidentiary and testimonial privileges against disclosure FRE 502
Attorney client privilege - protection of confidential
communications between attorney and client
Work-product privilege Tangible material or intangible
equivalent prepared in anticipation of litigation or trial
The privilege belongs to the client
Attorney must assert it unless waived
C. 4 Lawyer's Duty of Confidentiality 3
Attorney Client Privilege
1) protects communications
2) between privileged persons
3) in confidence
4) for the purpose of providing legal
assistance
C. 4 Lawyer's Duty of Confidentiality 4
A barrier to discoveryNot a rule of evidence
Work-Product Privilege
C. 4 Lawyer's Duty of Confidentiality 5
Work Product Privilege FRCvP Rule 26 A limitation on discoverable material Documents and tangible things
prepared in anticipation of litigation or for trial
May be overcome on showing of “substantial hardship”
Court must “protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation”
C. 4 Lawyer's Duty of Confidentiality 6
Privileges are in derogation of search for truth 1) Party asserting privilege has the
burden of proof that either - the communication is between
attorney and advice-seeking client or agent OR
- it is attorney work product (notes, impressions, legal theories – not facts)
AND it has not been disclosed to a stranger to the representationC. 4 Lawyer's Duty of
Confidentiality 7
Q. 4-1 Client leaving dirty picture showWhat is the proper finding for the disciplinary committee? P.316 (A) The lawyer violated no duties
because the information about the client’s whereabouts was not protected by the attorney-client privilege.
(B) The lawyer violated the duty of confidentiality because the information was privileged.
C. 4 Lawyer's Duty of Confidentiality 8
Q. 4-1 Client leaving dirty picture showWhat is the proper finding for the disciplinary committee? (C) The lawyer violated the duty of
confidentiality because the information was related to the representation and was not covered by any of the exceptions.
(D) The lawyer violated no duties because the information was not secret—it was
known by the woman who was with his client at the time. C. 4 Lawyer's Duty of
Confidentiality 9
Model Rule 1.6: Confidentiality of Information
(a) A lawyer shall not reveal information relating to the representation of a client unless
the client gives informed consent,
the disclosure is impliedly authorized in order to carry out the representation or
the disclosure is permitted by paragraph (b).C. 4 Lawyer's Duty of
Confidentiality 10
C. 4 Lawyer's Duty of Confidentiality 11
Restatement § 60 A Lawyer's Duty to Safeguard Confidential Client Information
(1) …During and after representation of a client:
(a) the lawyer may not use or disclose confidential client information… if there is a reasonable prospect that doing so will adversely affect a material interest of the client or
the client has instructed the lawyer not to use or disclose such information
C. 4 Lawyer's Duty of Confidentiality 12
Restatement § 60 A Lawyer's Duty to Safeguard Confidential Client Information
§ 61 Using or Disclosing Information to Advance Client Interests
A lawyer may use or disclose
confidential client information when
the lawyer reasonably believes that
doing so will advance the interests
of the client in the representation.
Q. 4-2, p. 317 Must the lawyer produce the surveillance tape? (A) No, because it is privileged. (B) No, because to do so would
violate Lawyer’s duty of confidentiality.
(C) Yes, because the information is not privileged and the lawyer must turn over non-privileged information if a lawful demand is made.
(D) Yes, because even though the information is privileged, the Lawyer must comply with a discovery request.
C. 4 Lawyer's Duty of Confidentiality 13
M.R.P.C. 1.6 (b) (6)
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(6) to comply with other law or a court order.
C. 4 Lawyer's Duty of Confidentiality 14
C. 4 Lawyer's Duty of Confidentiality 15
Exceptions to Confidentiality – Lawyer's Duties to a Client – Restatement § § 61-67
- to advance client interests (61) - with consent (62) - when required by law (63) - in self-defense by attorney (64) - in a fee dispute (65) - to prevent death or serious bodily
harm (66)
Q. 4-3, p. 324 Is this a good deal? How is this communication to be
treated?
(A) As privileged, because the client
was speaking in confidence to the
lawyer.
(B) Not privileged, because the client
was not seeking legal advice, and
therefore not within the duty of
confidentiality under Model Rule 1.6.
C. 4 Lawyer's Duty of Confidentiality 16
Q. 4-3, p. 324 Is this a good deal? (C) Privileged, if the dominant intent
is to seek legal advice, and within the duty of confidentiality.
(D) Privileged, if there was any intent to seek legal advice, but not protected by the duty of confidentiality as its disclosure would not injure the client
C. 4 Lawyer's Duty of Confidentiality 17
Between attorney (or agent) and client
Protected Communications
C. 4 Lawyer's Duty of Confidentiality 18
Communications (Not facts) are privileged
The communications requirement
C. 4 Lawyer's Duty of Confidentiality 19
Communications between whom? Attorney and client – or client’s
agents within the scope of the representation of the client
- shareholders? - directors? - officers - control group? - employees - experts/consultants
C. 4 Lawyer's Duty of Confidentiality 20
Q. 4-4 P. 330 Can the lawyer refuse to testify that he saw the former client skiing?
(A) No, because the information is not a communication and therefore is not protected by the privilege.
(B) No, because the attorney no longer represents the client.
(C) Yes, because turning over the information could subject the lawyer to discipline for violating Model Rule 1.6.
(D) Yes, because the privilege means that the lawyer cannot be forced to testify against his client. C. 4 Lawyer's Duty of
Confidentiality 21
In re County of Erie (2007), p. 307 Should the privilege of attorney
client confidentiality be broader or narrower for public entities?
To prevail plaintiffs needed to show an intentional tort – i.e. that the County had a policy of invasive strip searches.
Shouldn’t the centrality of that issue lead to disclosure of all relevant communications between County lawyers and officials?C. 4 Lawyer's Duty of
Confidentiality 22
NJRE 504 Atty – Client Privilege
The privilege shall be claimed by
the lawyer unless otherwise
instructed by the client or his
representative
The privilege may be claimed by
the client in person, or if
incompetent or deceased, by his
guardian or personal
representative.
C. 4 Lawyer's Duty of Confidentiality 23
Disclosure to someone other than the privileged person’s lawyer* is a waiver
Unless - Disclosure was inadvertent - privilege holder took reasonable
measure to prevent disclosure - privilege holder took reasonable
steps to rectify disclosure * or agents of lawyer
C. 4 Lawyer's Duty of Confidentiality 24
Common interest agreement
Parties who agree share
confidential information
pursuant to a common defense
or litigation strategy or in a
common matter have not waived
confidentiality thereby.C. 4 Lawyer's Duty of
Confidentiality 25
Upjohn v. United States (1981)
The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.
Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justiceC. 4 Lawyer's Duty of
Confidentiality 26
Upjohn warning – ABA White Collar Crime Section
I am a lawyer for Corporation A. I represent only Corporation A, and I do not represent you personally.
I am conducting this interview to gather facts in order to provide legal advice for Corporation A. This interview is part of an investigation to determine the facts and circumstances of X in order to advise Corporation A how best to proceed.
Your communications with me are protected by the attorney-client privilege. But the attorney-client privilege belongs solely to Corporation A, not you. That means Corporation A alone may elect to waive the attorney-client privilege and reveal our discussion to third parties. Corporation A alone may decide to waive the privilege and disclose this discussion to such third parties as federal or state agencies, at its sole discretion, and without notifying you.
C. 4 Lawyer's Duty of Confidentiality 27
Upjohn warnings - ABA Your communications with me are
protected by the attorney client privilege. But the attorney client privilege belongs solely to Corporation A, not you. That means Corporation A alone may elect to waive the attorney client privilege and reveal our discussion to third parties. Corporation A alone may decide to waive the privilege and disclose this discussion to such third parties as federal or state agencies, at its sole discretion, and without notifying you
C. 4 Lawyer's Duty of Confidentiality 28
Upjohn warning, cont’d In order for this discussion to be
subject to the privilege, it must be kept in confidence. In other words, with the exception of your own attorney, you may not disclose the substance of this interview to any third party, including other employees or anyone outside of the company. You may discuss the facts of what happened but you may not discuss this discussion.
Do you have any questions? Are you willing to proceed?
C. 4 Lawyer's Duty of Confidentiality 29
Upjohn v. United States (1981), p. 332
Who holds the privilege?
Why does the court reject the control
group test as too “narrow”?
What options do the prosecutors
have after Upjohn?
C. 4 Lawyer's Duty of Confidentiality 30
Upjohn v. United States (1981), p. 332
Aren’t the questionnaires the most efficient way for the prosecutor’s office to get what it needs?
What was the Magistrate’s error regarding the work product privilege?
C. 4 Lawyer's Duty of Confidentiality 31
Sharing within an organization Disclosures regarding a legal matter
of the entity Among its agents or privileged
persons Who reasonably needs to know in
order to act for the corporation Do not waive the attorney client
privilege of confidentiality
C. 4 Lawyer's Duty of Confidentiality 32
Restatement 3rd LGL: § 73 The Privilege for an Organizational Client
When a client is a corporation, unincorporated association, partnership, trust, estate, sole proprietorship, or other for-profit or not-for-profit organization, the attorney-client privilege extends to a communication that:
C. 4 Lawyer's Duty of Confidentiality 33
Restatement 3rd LGL: § 73 The Privilege for an Organizational Client
(1) otherwise qualifies as privileged under § § 68-72;
(2) is between an agent of the organization and a privileged person as defined in § 70;
(3) concerns a legal matter of interest to the organization; and
C. 4 Lawyer's Duty of Confidentiality 34
Restatement 3rd LGL: § 73 The Privilege for an Organizational Client
(4) is disclosed only to: (a) privileged persons as defined
in § 70; and (b) other agents of the
organization who reasonably need to know of the communication in order to act for the organization.
C. 4 Lawyer's Duty of
Confidentiality 35
When they seek legal advice for themselves
Only clients are protected
C. 4 Lawyer's Duty of Confidentiality 36
In re G.J.Subpoena(4th Cir. 2005) p. 340
We represent the company. These conversations are privileged, but the privilege belongs to the company and the company decides whether to waive it. You are free to consult with your own lawyer at any time.”
"We can represent [you] until such time as there appears to be a conflict of interest, [but] . . . the attorney-client privilege belongs to AOL and AOL can decide whether to keep it or waive it.“
C. 4 Lawyer's Duty of Confidentiality 37
In re G.J.Subpoena(4th Cir. 2005) p. 340
(1) the asserted holder of the privilege is or sought to become a client
(2) the person to whom the communication was made
(a) is a member of the bar of a court, or his subordinate and
(b) in connection with this communication is acting as a lawyer
C. 4 Lawyer's Duty of Confidentiality 38
In re G.J.Subpoena(4th Cir. 2005) p. 340
(3) the communication relates to a fact of which the attorney was informed
(a) by his client (b) without the presence of
strangers
c) for the purpose of securing
primarily either (i) an opinion on
law or (ii) legal services or (iii)
assistance in some legal
proceeding
C. 4 Lawyer's Duty of Confidentiality 39
In re G.J.Subpoena(4th Cir. 2005) p. 340
and not
(d) for the purpose of
committing a crime or tort; and
(4) the privilege has been
(a) claimed and
(b) not waived by the client.
C. 4 Lawyer's Duty of Confidentiality 40
In re G.J.Subpoena(4th Cir. 2005) p. 340
The joint defense privilege protects communications between parties who share a common interest in litigation.
To allow persons with a common interest to "communicate with their respective attorneys and with each other to more effectively prosecute or defend their claims."
Some joint strategy req’dC. 4 Lawyer's Duty of
Confidentiality 41
In re New York Renu p. 347Report of special master
Is the communication privileged?Disclosures to non-lawyer agents of the representation
C. 4 Lawyer's Duty of Confidentiality 42
Renu Moisture-Loc privilege claims Two email chains 1) Corp and Exec to CEO, General
Counsel and Hill & Knowlton PR firm Denied
2) Corp exec to CEO re need to seek legal advice from GC Sustained
3) Hill and Knowlton suggest mechanism for redemption of defective items Denied
C. 4 Lawyer's Duty of Confidentiality 43
`Kovel doctrine’ Disclosure to non-lawyers is protected IF 1) Communication’s predominant
purpose is to seek legal advice 2) Disclosure limited to those with
“need to know” advice of counsel 3) State privilege law applies in
diversity or FTCA case 4) Communication to non lawyer
must be necessary to promote the lawyer’s effectiveness
C. 4 Lawyer's Duty of Confidentiality 44
Is communication with a PR firm `necessary to the representation?
1) NO “a media campaign is not a litigation strategy” Haugh v. Schroder (2003)
2) Foreign language – company needed help from PR firm Copper Market Anti-trust Lit (2001)
3) PR firm helped counsel “create an atmosphere” to influence prosecutor In Re. G.J. (2003)
4) NY – waiver unless disclosure “absolutely necessary” to lawyer’s services
C. 4 Lawyer's Duty of Confidentiality 45
Q. 4-5 p. 352 – Expectation of confidentiality Is the negative information obtained by the
law firm protected by the attorney-client privilege?
(A) Yes (B) No
C. 4 Lawyer's Duty of Confidentiality 46
U.S. v. Hatcher (2003) p. 330
Because the inmates and their
lawyers were aware that the
conversations were being
recorded they had no reasonable
expectation of privacy
C. 4 Lawyer's Duty of Confidentiality 47
Intentional relinquishment of a known right
Forfeiture
Waiver of the privilege
C. 4 Lawyer's Duty of Confidentiality 48
Which of the following is correct?Q. 4-6, p. 357
(A) The report is not privileged, because the law firm was acting as a factual investigator, and so the “legal advice” requirement of the privilege is not met.
(B) The corporation waived any privilege by disclosing the report to the Department of Justice.
C. 4 Lawyer's Duty of Confidentiality 49
Which of the following is correct?Q. 4-6, p. 357
(C) There was no waiver, because the corporation was forced to turn over the report to the Department of Justice, in order to avoid a criminal prosecution.
(D) The private parties cannot take advantage of the waiver, because it was not a general waiver, and the Department agreed to keep the disclosure confidential. C. 4 Lawyer's Duty of
Confidentiality 50
Development of F.R. Evid,. 502 – limitations on waiver of privilege Pre-rule case law:
1) only intentional disclosure is a
waiver
2) careless disclosure and no
retrieval = waiver
3) any inadvertent disclosure is a
waiver
C. 4 Lawyer's Duty of Confidentiality 51
Fed. R. Evidence 502Limitations on Waiver of Attorney Client and Work Product Privileges a) In a federal proceeding or to a
federal office or agency b) inadvertent disclosure c) in a state proceeding d) federal court order may limit
waiver by disclosure e) party agreement binds only
parties unless incorporated in a court order C. 4 Lawyer's Duty of
Confidentiality 52
FRE 502 Inadvertent Disclosure not a waiver if the disclosure is inadvertent; the holder of the privilege or
protection took reasonable steps to prevent disclosure; and
the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).
C. 4 Lawyer's Duty of Confidentiality 53
FRCP 25(b)(5)(B)
(B) Information Produced. If information produced in discovery is subject to a claim of privilege or of protection as trial preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it.
C. 4 Lawyer's Duty of Confidentiality 54
FRCP 25(b)(5)(B)
After being notified, a party must
promptly return, sequester, or
destroy the specified information and
any copies it has; must not use or
disclose the information until the
claim is resolved;C. 4 Lawyer's Duty of
Confidentiality 55
FRCP 25(b)(5)(B) must take reasonable steps to
retrieve the information if the party
disclosed it before being notified; and
may promptly present the
information to the court under seal
for a determination of the claim. The
producing party must preserve the
information until the claim is
resolved.
C. 4 Lawyer's Duty of Confidentiality 56
Q.4-7 p. 366 Has the defendant waived the privilege by producing the emails in the prior litigation?
(A) No, because there has been no showing that any waiver was intentional.
(B) No, because the court order protects against a waiver in any subsequent litigation.
(C) Yes, because the order in the previous case cannot bind a person who was not a party in that case.
(D) Yes, because the order was entered in the absence of agreement between the parties in the case
C. 4 Lawyer's Duty of Confidentiality 57
to the Attorney Client Privilege
The Crime Fraud Exception
C. 4 Lawyer's Duty of Confidentiality 58
In re Grand Jury Investigation (Schroeder) (11th Cir.1987)
1) a prima facie showing that - the client was engaged in criminal
or fraudulent conduct when he sought the advice of counsel
- that he was planning such conduct when he sought the advice of counsel, or
- he committed a crime or fraud subsequent to receiving the benefit of counsel's adviceC. 4 Lawyer's Duty of
Confidentiality 59
In re Grand Jury Investigation (Schroeder) (11th Cir.1987)
Second, there must be a showing
that the attorney's assistance was
obtained in furtherance of the
criminal or fraudulent activity or was
closely related to it. .
C. 4 Lawyer's Duty of Confidentiality 60
Ch. 4 Lawyer's Duty of Confidentiality Part 2 61
Professional Responsibility Ch. 4 The Lawyer’s Duty of
Confidentiality - part 2 George W. Conk Adjunct Professor of Law & Senior
Fellow Stein Center for Law & Ethics Room 409 212-636-7446 [email protected]
The Crime Fraud Exception
Attorney’s knowledge irrelevant
Applies only when attorney is being
used in future or ongoing scheme
Triggered by client’s communication
of intent to defraud or commit crime
C. 4 Lawyer's Duty of Confidentiality 62
§ 82 Client Crime or Fraud No privilege if client : (a) consults a lawyer for the
purpose, later accomplished, of obtaining assistance to engage in a crime or fraud or aiding a third person to do so, or
(b) regardless of the client's purpose at the time of consultation, uses the lawyer's advice or other services to engage in or assist a crime or fraud.
C. 4 Lawyer's Duty of Confidentiality 63
Q. 4-8, p. 373 – Crime-fraud exception to the duty to maintain confidences
A) Neither is privileged because both statements are evidence of crie of fraud.
B) Both are privileged because they are part of request for legal advice
C) first is privileged, second is not because it was made to further a crime or fraud
D) Second statement is privileged if Joe abandons his plan to destroy records
Ch. 4 Lawyer's Duty of Confidentiality Part 2 64
MRPC 1.6
Basics of the Duty of Confidentiality
Ch. 4 Lawyer's Duty of Confidentiality Part 2 65
Q. 4-9, p. 376 – triggering the duty under RPC 1.9 – former and prospetive clients Subject to discipline?
A) Yes – Smith was a client
B) Yes – Smith was a prospective
client c) No - Smith was not a
client
D) No - information was not
dispositive Ch. 4 Lawyer's Duty of Confidentiality Part 2 66
Q. 4-10, p. 381 – Scope of info w/i the duty of confidentiality
A) No – it is not privileged info B) No - because the former partner
committed fraud on the tribunal C) Yes – because neither client nor
attorney was involved D) Yes – because disclosure would be
detrimental to the client
Ch. 4 Lawyer's Duty of Confidentiality Part 2 67
Q. 4-11, p. 386 info unrelated to the representation
A) Yes – he is an officer of the court B) Yes – he is impeding state access
to evidence C) No – because he did not represent
or advise the client re the prior crimes
D) No – the info was obtained in the course of the representation
Ch. 4 Lawyer's Duty of Confidentiality Part 2 68
Q. 4-12, p. 387 – to prevent death or serious injury
A) No – he had a duty to disclose B) No – he was permitted to disclose
to prevent a death C) – Yes because he cause death of
his cliet D) Yes – because death was not
reasonably certain
Ch. 4 Lawyer's Duty of Confidentiality Part 2 69
Q. 13, p. 362 – destroying evidence A) No – lawyer has no duty to sit
silently while client commits a crime B) No – the information was not
privileged as advice was not sought on that issue
C) No – because disposing of a weapon could lead to death or serious bodily harm
D) Yes - because there is no exception to the duty of confidentiality under these circumstances
Ch. 4 Lawyer's Duty of Confidentiality Part 2 70
Q. 14, p. 362 client threatens suicideMay attorney disclose the fact to authorities? A) Yes – because a future crime is not
protected by Attorney-client privilege B) Yes – because disclosure might
prevent client’s death C) No – unless atty knows there have
been prior attempts D) No – because disclosure would aid
state in civil commitment proceedings
Ch. 4 Lawyer's Duty of Confidentiality Part 2 71
Q. 4-13, p. 372 Self protection – is attorney disclosure permitted?
A) Yes – unless client objects B) Yes – because an attorney has a
right of self-defense C) No – unless criminal charges have
been brought against the attorney D) No – because disclosure will harm
the client
Ch. 4 Lawyer's Duty of Confidentiality Part 2 72
Definitions and black-letter rules
Confidentiality
Ch. 4 Lawyer's Duty of Confidentiality Part 2 73
Confidential information – NY definition
“Confidential information” consists of
information gained during or relating
to the representation of a client,
whatever its source, that is (a)
protected by the attorney-client
privilege, (b) likely to be
embarrassing or detrimental to the
client if disclosed, or (c) information
that the client has requested be kept
confidential.
Ch. 4 Lawyer's Duty of Confidentiality Part 2 74
Confidential information – NY definition “Confidential information” does not ordinarily include (i) a
lawyer’s legal knowledge or legal research or
(ii) information that is generally known in the local community or in the trade, field or profession to which the information relates.
Ch. 4 Lawyer's Duty of Confidentiality Part 2 75
Model Rule 1.6: Confidentiality of Information
(a) A lawyer shall not reveal information relating to the representation of a client unless
the client gives informed consent,
the disclosure is impliedly authorized in order to carry out the representation or
the disclosure is permitted by paragraph (b).Ch. 4 Lawyer's Duty of
Confidentiality Part 2 76
Rule 1.6 (b) exceptions to Confidentiality of Information
(b) A lawyer may reveal
information relating to the
representation of a client to the
extent the lawyer reasonably
believes necessary:
Ch. 4 Lawyer's Duty of Confidentiality Part 2 77
Rule 1.6 (b) exceptions to Confidentiality of Information
(1) to prevent reasonably certain
death or substantial bodily harm
Ch. 4 Lawyer's Duty of Confidentiality Part 2 78
Rule 1.6 (b) exceptions
(2) to prevent the client from
committing a crime or fraud that
is reasonably certain to result in
substantial injury to the financial
interests or property of another
and in furtherance of which the
client has used or is using the
lawyer's services;Ch. 4 Lawyer's Duty of Confidentiality Part 2 79
Rule 1.6 (b) exceptions to Confidentiality of Information
(3) to prevent, mitigate or rectify
substantial injury to the financial
interests or property of another that
is reasonably certain to result or has
resulted from the client's commission
of a crime or fraud in furtherance of
which the client has used the
lawyer's services;
Ch. 4 Lawyer's Duty of Confidentiality Part 2 80
Rule 1.6 (b) exceptions to Confidentiality of Information
(4) to secure legal advice
about the lawyer's
compliance with these Rules
Ch. 4 Lawyer's Duty of Confidentiality Part 2 81
Rule 1.6 (b) exceptions to Confidentiality of Information (5) to establish a claim or defense on
behalf of the lawyer in a controversy between the lawyer and the client
to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or
Ch. 4 Lawyer's Duty of Confidentiality Part 2 82
Rule 1.6 (b) exceptions to Confidentiality of Information
(6) to comply with other law
or a court order.
Ch. 4 Lawyer's Duty of Confidentiality Part 2 83
Ch. 4 Lawyer's Duty of Confidentiality Part 2 84
Restatement § 60 A Lawyer's Duty to Safeguard Confidential Client Information
(1) …During and after representation of a client:
(a) the lawyer may not use or disclose confidential client information… if there is a reasonable prospect that doing so will adversely affect a material interest of the client or
the client has instructed the lawyer not to use or disclose such information
Ch. 4 Lawyer's Duty of Confidentiality Part 2 85
Restatement § 60 A Lawyer's Duty to Safeguard Confidential Client Information
§ 61 Using or Disclosing Information to Advance Client Interests
A lawyer may use or disclose confidential client information when the lawyer reasonably believes that doing so will advance the interests of the client in the representation.
M.R.P.C. 1.6 (b) (6)
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(6) to comply with other law or a court order.
Ch. 4 Lawyer's Duty of Confidentiality Part 2 86
Ch. 4 Lawyer's Duty of Confidentiality Part 2 87
Exceptions to Confidentiality – Lawyer's Duties to a Client – Restatement § § 61-67
- to advance client interests (61) - with consent (62) - when required by law (63) - in self-defense by attorney (64) - in a fee dispute (65) - to prevent death or serious bodily
harm (66)
Rule 1.18 Duties to Prospective Client
(a) A person who discusses with
a lawyer the possibility of
forming a client-lawyer
relationship with respect to a
matter is a prospective client.
Ch. 4 Lawyer's Duty of Confidentiality Part 2 88
Rule 1.18 Duties to Prospective Client
(b) Even when no client-lawyer
relationship ensues, a lawyer who
has had discussions with a
prospective client shall not use or
reveal information learned in the
consultation, except as Rule 1.9
would permit with respect to
information of a former client.Ch. 4 Lawyer's Duty of Confidentiality Part 2 89
Rule 1.18 Duties to Prospective Client (c) A lawyer subject to
paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d) [screening].
Ch. 4 Lawyer's Duty of Confidentiality Part 2 90
Rule 1.18 Duties to Prospective Client
If a lawyer is disqualified from
representation under this
paragraph, no lawyer in a firm
with which that lawyer is
associated may knowingly
undertake or continue
representation in such a matter,
except as provided in paragraph
(d) [screening].
Ch. 4 Lawyer's Duty of Confidentiality Part 2 91
R. 1.9 Duties to former clients (c) A lawyer who has formerly
represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
Ch. 4 Lawyer's Duty of Confidentiality Part 2 92
R. 1.9 Duties to former clients (1) use information relating to
the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.
Ch. 4 Lawyer's Duty of Confidentiality Part 2 93
R. 3.3 Candor Toward the Tribunal
(b) A lawyer who represents a client
in an adjudicative proceeding and
who knows that a person intends to
engage, is engaging or has engaged
in criminal or fraudulent conduct
related to the proceeding shall take
reasonable remedial measures,
including, if necessary, disclosure to
the tribunal.
Ch. 4 Lawyer's Duty of Confidentiality Part 2 94
Q. 4-14 p. 403 Lawyer self-protection
Is it proper for Attorney to reveal such information?
(A) Yes, unless Client objects to the disclosure.
(B) Yes, because Attorney may reveal such information to defend herself against a civil claim.
(C) No, unless criminal charges have also been brought against Attorney.
(D)No, because the disclosure will be detrimental to Client. C. 4 Lawyer's Duty of
Confidentiality 95