Overview
When does confidentiality attach?
But for the A-C relationship, the attorney would not know the information
What exceptions are included in 1.6(a)?
Implied authorization and informed consent.
What is 3.3(a)(3)?
If L discovers C or W offers false material evidence, L must take reasonable remedial measures, including if necessary, disclosure to the tribunal.
Under what rules would you discuss confidential information/ disclosing confidential information with a client?
1.4 and 1.13
A lawyer had represented a businesswoman in a number of mergers and acquisitions that resulted in her ownership of a very successful national chain of car dealerships. Despite numerous attempts, the lawyer has been unable to collect the significant outstanding legal fees the client owed him.
May the lawyer reveal confidential information to collect their fees?
1.6(b)(5) The lawyer may bring a collection action against the client and reveal confidential information about the client’s financial ability to pay his outstanding fee in the collection action.
What is the general confidentiality rule? 1.6(a)
A lawyer cannot reveal information relating to the representation of a client.
Explain the exception related to physical harm.
1.6(b)(1) A lawyer may reveal to prevent reasonably certain death or substantial bodily harm
What is 3.3(b)?
If L discovers C intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to the proceeding, L must take reasonable remedial measures, including if necessary, disclosure to the tribunal.
When does your confidentiality duty to a client end?
NEVER
1.9(c)
Client comes to your office and seems to have been drinking. At the end of your meeting, he says he is late for a meeting and is going to drive 20 over the speed limit like he usually does to get there on time. Can you disclose?
No. 1.6(b)(1) does not apply you are not reasonably certain death or substantial bodily harm will occur.
Does confidentiality attach amongst co-clients?
No
Explain the two exceptions created as a result of the Elron financial disaster?
1.6(b)(2) A lawyer may reveal to prevent a client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interest or property of another
1.6(b)(3) A lawyer may reveal a crime or fraud that already occurred to prevent, mitigate, or rectify the injury.
What is 1.13(c)?
If L goes to the highest authority and the issue is unresolved + reasonably certain the violation will result in substantial injury to the entity, then L may reveal confidential information.
When would confidentiality issues lead to withdrawal under 1.16?
Must withdraw when the client seeks to use/persists to use the lawyer's services to commit or further a crime pursuant to 1.2(d) and 1.4(a)(5).
May withdraw if L reasonably believes the client's course of action is criminal or fraudulent, the client has used L's services to perpetrate a crime or fraud, the A-C relationship has been damages due to disclosure.
A lawyer had represented a client in his business dealings for more than a decade, and the two had developed a close friendship. Recently, when the lawyer encountered his client, his client had been uncharacteristically agitated and talked about life being “not worth it” and that his coworkers would be “better off put out of their misery.” The client had also told the lawyer that he had purchased an assault rifle, “just in case.” The lawyer, very concerned about his client, disclosed the information to his client’s wife.
Does Rule 1.6 of the Model Rules of Professional Conduct permit the lawyer’s disclosure?
Yes, because the lawyer reasonably believed disclosure was necessary to prevent reasonably certain death or substantial bodily harm.
What is the public policy reason for confidentiality?
Trust is the hallmark of the A-C relationship. This promotes information sharing which leads to fully formed legal advice and more effective representation.
Explain the three exceptions related to to the rules of professional conduct/ the law.
1.6(b)(4) Lawyers may reveal to secure legal advice to ensure compliance with the rules of professional conduct.
1.6(b)(6) Lawyers may reveal to comply with other law or a court order.
1.6(b)(7) Lawyers may reveal to detect and resolve any conflicts but cannot compromise A-C privilege or otherwise prejudice the client
If an exception to confidentiality applies, how much can you reveal?
Only to the extent the lawyer reasonably believes necessary
If you are reporting a lawyer for misconduct under 8.3, are you required to disclose confidential information?
No! 1.6 still applies
A criminal-defense lawyer was representing a client on criminal charges in connection with the client’s extermination business. The client, a sole proprietor, had placed industrial-grade, rather than residential-grade, rat poison in the basement of a private residence. The industrial poison, unlike the residential poison, is toxic to humans if ingested. The homeowners’ toddler ingested the poison and became seriously ill but recovered after hospitalization. During the representation, the lawyer learned from her client that, in addition to the residence where the incident had occurred, the client had placed industrial-grade rat poison in numerous other residences’ basements. The lawyer advised her client, who was free on bond, to identify the residences where he had placed the industrial-grade poison and immediately inform the occupants of the danger and need for remediation. The client identified 30 homes where he had used the industrial poison but had not contacted the occupants. In addition to imploring her client repeatedly to contact the affected occupants, the lawyer offered to contact them herself if her client would supply her with his records. The client supplied the lawyer with his records but was unwilling to authorize her to contact the affected occupants. On the eve of his trial, the client had not contacted the affected occupants, nor had the prosecution sought discovery of the client’s business records.
Does Model Rule of Professional Conduct 1.6 require the lawyer to disclose the presence of toxic rat poison to the affected occupants?
No, because the Model Rules permit, but do not require, the lawyer to disclose the client’s confidential information under these circumstances.
What is 1.6(c)? What are the factors?
A lawyer must take reasonable efforts to prevent unauthorized disclosure of confidential information. Factors to consider include: sensitivity of the information, likelihood of disclosure if additional safeguards are not employed, cost of safeguards, difficulty of implementing safeguards, and extent to which safeguards adversely affects L's ability to represent the client (comment 18 to 1.6).
Explain the exception related to a lawyer defending themselves.
1.6(b)(5) A lawyer may reveal
to establish a claim on behalf of the lawyer in a controversy between the lawyer and the client
to establish a 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
to respond to allegations in any proceeding concerning the lawyer's representation of the client
What are the mandatory exceptions? What are the permissive exceptions?
Mandatory- 3.3(a)(3), 3.3(b)
Permissive- 1.6(b), 1.13(c)
If you are seeking to cure a client to client direct conflict under 1.7(a)(1), how might confidentiality be implicated?
When asking for informed consent from C1, you must ask to share confidential information about C1 in order to share the necessary information to get informed consent from C2.
After murdering his wife, a man planned to flee the United States in violation of a federal statute that makes it a crime to flee a jurisdiction to evade prosecution. The man consulted an attorney for advice about which countries do not have extradition treaties with the United States, which the attorney provided. The man subsequently used the information the attorney provided to flee to a country without an extradition treaty.
Is the man’s consultation with the attorney protected by the attorney-client privilege?
No, because the privilege does not apply to communications made in furtherance of committing a future crime or tort.