TOPIC B: CONFIDENTIALITY 2016 P.R. Prof. Janicke.
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Transcript of TOPIC B: CONFIDENTIALITY 2016 P.R. Prof. Janicke.
TOPIC B: CONFIDENTIALITY
2016 P.R.Prof. Janicke
TOPIC B 2
ALL INFO “RELATING” TO THE REPRESENTATION
• MUCH BROADER THAN “PRIVILEGED COMMUNICATIONS”
• EVEN COVERS PUBLICLY AVAILABLE INFO, IF LEARNED IN COURSE OF REPRESENTATION
• [MUST BE A PRACTICAL LIMITATION?]2016
TOPIC B 3
• THE RULE IS NOT LIMITED TO WHAT THE CLIENT TOLD THE LAWYER
• TODAY, LAWYERS ARE OFTEN INVESTIGATORS– THEY INTERVIEW– THEY MAKE INQUIRIES– THEY STUDY DOCUMENTS
2016
TOPIC B 4
BASIC RULE• R. 1.6:
• INFO CANNOT BE DIVULGED WITHOUT INFORMED CONSENT AS DEFINED IN R. 1.0(e) [NOT EASY TO COMPLY]
– BUT CAN BE IMPLIEDLY AUTHORIZED– HOW ELSE COULD A LAWYER
FUNCTION?2016
TOPIC B 5
RULE 1.6(b) EXCEPTIONS
• LAWYER MAY (i.e., HAS THE OPTION TO) REVEAL CONFID. INFO:– TO PREVENT FUTURE DEATH OR
SERIOUS BODILY HARM– PREVENT FUTURE CLIENT CRIME OR
FRAUD IF THE LAWYER’S SERVICES WERE INVOLVED IN THE WRONGDOING
– RECTIFY CLIENT’S PAST WRONGS IF THE LAWYER’S SERVICES WERE INVOLVED IN THEM
2016
TOPIC B 6
WHERE WARNING IS NOT ALLOWED
• LAWYER LEARNS FROM CLIENT: CLIENT HAS PLAN TO HACK INTO BANK AND STEAL $$
• WANTS LAWYER’S ADVICE ON WHERE TO PUT THE MONEY
• LAWYER DECLINES TO ADVISE, BUT CONTINUES THE REPRESENTATION
• LAWYER CANNOT WARN THE BANK R. 1.6(b)(2) – NO LAWYER SERVICES USED
2016
TOPIC B 7
MORE EXCEPTIONS• DISCLOSURE NEEDED TO CHECK
ETHICS RULES COMPLIANCE– TO CLEAR CONFLICTS– TO GET ETHICS OPINIONS
• DISCLOSURE NEEDED TO DEFEND LAWYER, CIVILLY OR CRIMINALLY
• DISCLOSURE NEEDED TO COMPLY WITH A COURT ORDER [OFTEN TROUBLESOME]
2016
TOPIC B 8
USING INFO, W/O REVEALING IT,
IS LIMITED• LWYR CANNOT USE CONFID. INFO TO
THE CLIENT’S “DISADVANTAGE”
• BUT CAN USE IT – WITHOUT REVEALING IT – OTHERWISE
R. 1.8(b)
2016
TOPIC B 9
EXAMPLE:• LEGAL RESEARCH RESULTS
• CAN BE USED
• BUT CANNOT REVEAL FOR WHOM THE WORK WAS DONE, ETC.
2016
TOPIC B 10
QUESTION:• CAN YOU REVEAL THAT YOU
REPRESENT (OR DID IN THE PAST) A COMPANY IN COURT?
• STRICTLY SPEAKING, NO– IS NOT TO CLIENT “DISADVANTAGE”
UNDER R. 1.8– BUT SEEMS PROHIBITED UNDER R. 1.6
2016
TOPIC B 11
MORE RE. THE EXCEPTIONS• NEED TO CHECK FOR CONFLICTS
– OFTEN SPEAKING OUTSIDE THE FIRM
– WITHIN THE FIRM, DISCLOSURES AND SUBSTANTIVE DISCUSSIONS AMONG LAWYERS ARE PRESUMED PERMITTED R. 1.6 C5, last sentence
2016