Material Covered in Assignment 4-2: The Duty of Confidentiality (p.376)

A. Individuals to Whom a Duty of Confidentiality is Owed (p.376) [Rules 1.9, 1.18; Q. 4-9]

B. Scope of Information Covered By the Duty of Confidentiality (p.378)

1. The prohibition: Rule 1.6 prohibits REVEALING information (p.378)

See also Rule 1.8(b) regarding the use of information. Distinguish between” information” and “OBJECTS” (i.e., no obstruction of justice).] Rules 1.2(d) & 3.4. See also Rule 1.6(c) re SYSTEMS.

2. The Definition: Confidentiality Applies to “Information Related to the Representation” (p.381) [Belge p. 382; Rule 1.6(a); Q. 4-10]

C. Exceptions to the Duty of Confidentiality (p.385)

1. To Prevent Death or Serious Bodily Harm (p.386); Rule 1.6(b)(1);Q. 4-11 to 4-13]

2. To Protect Victims When the Client has Misused the Lawyer’s Services (p.393) [Rule 1.6(b)(2) & (3)]

3. Lawyer Self-Protection (p.403) [Rule 1.6(b)(5); Q. 4-14]

4. Other Exceptions (p.405)[Rule 1.6(b)(4),(6) & (7)]

Question 4-9 (p. 376)

Smith meets with Lawyer to discuss a possible property claim against Rich. After Smith explains his claim, Lawyer determines that Smith cannot afford her services and refuses the case. Rich then meets with Lawyer and offers to meet all of Lawyer's financial terms. In representing Rich, Lawyer uses the information Smith provided, reasoning that because they never had an attorney-client relationship, Lawyer owed Smith no duty of confidentiality.

Is she subject to discipline?

Question 4-10 (p. 381)

An attorney represents a client who is under indictment for homicide. In the course of the representation, the client told the attorney that she had previously killed two other people. These murders are completely unrelated to the murder indictment for which the attorney is providing representation. With the client's consent, the attorney made a tape recording of the client's confession regarding the unrelated homicides. At the attorney's request, the client also drew a map of the remote locations of the victims' graves from the unrelated killings. Those bodies have not been found by the police, and the client is not a suspect in either crime, both of which remain unsolved.

Is the attorney subject to discipline if he fails to voluntarily disclose to the authorities his knowledge of the two prior murders

and the locations of the victims' bodies?

Question 4-11 (p. 386)

A lawyer represents a client charged with murder. When interviewing the client about what happened, the client says "I hope they don't find out about that other murder I did in Virginia. If they do, they'll put me on death row." At the lawyer's request, the client then gives the details about the other murder. The lawyer does some surfing on the internet and finds out that another person has been convicted of that murder in Virginia, and is awaiting execution for the crime.

The lawyer discloses the information to the authorities. Eventually the person convicted of that murder is released and the lawyer's client is convicted and sentenced to death. Is the lawyer subject to discipline?

Question 4-12 (p. 387)

A lawyer is representing a client who has been charged with murder. The murder weapon, a gun, has never been found. In a conference with the lawyer, the client says: "I'm worried about them finding that gun. I can't see any way out other than to get rid of it. I'm going to throw it in the swamp tonight, they'll never find it there." After the client leaves, the lawyer calls the police and tells them about the client's plan. The police then follow the client and arrest him just before he is going to throw the gun away.

Is the lawyer subject to discipline?

Question 4-13 (p. 388)

Attorney has been hired by Client to represent Client in a civil commitment proceeding initiated by the state. Client is nowundergoing psychiatric evaluation to determine whether civil commitment should be ordered. Client told Attorney that Client intends to commit suicide as soon as the tests are completed, and Attorney believes that Client will carry out this threat. Suicide and attempted suicide are crimes in the state.

Is it proper for Attorney to disclose Client's intentions to the authorities?

Question 4-14 (p. 403)

Attorney represented Client in negotiating a large real estate transaction. Buyer, who purchased the real estate from Client, has filed suit against both Client and Attorney, alleging fraud and violation of the state unfair trade practices statute. Attorney had advised Client by letter against making the statements relied on by Buyer as the basis for Buyer's claim. Attorney and Client are each represented by separate counsel. In responding to a deposition under subpoena, Attorney wishes to reveal, to the extent Attorney reasonably believes necessary to defend herself, confidential information imparted to Attorney by Client that will be favorable to Attorney but damaging to Client.

Is it proper for Attorney to reveal such information?