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20 Cards in this Set
- Front
- Back
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RULE 1.6 – The Ethical Duty of Confidentiality
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Subsection (a):
- You shall not reveal information related to the representation of a client unless: 1) the client gives informed consent; 2) the disclosure is impliedly authorized; or, 3) the disclosure is permitted by Paragraph (b). |
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Informed Consent of 1.6(a)
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WRITTEN consent after FULL DISCLOSURE:
FULL disclosure requires communication and EXPLANATION of the material RISKS and potential adverse CONSEQUENSES to the client of ANY disclosure of confidential information. |
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Implied Authorization 1.6 (a)
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Implied authorization to disclose exists when disclosure of confidential information is appropriate in carrying out the representation.
Necessary to seek desired relief or outcome. Examples: PPO Application, real estate purchase agreement. |
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Rule 1.6 (b) Exceptions
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(b) Exceptions (where you may reveal info regarding representation to the extent reasonably believed necessary):
o(1) to prevent reasonably certain death or substantial bodily harm; (2) Pre-Fraude/ Crime: to prevent a client from commiting Fraud/ Crime to finance/ property & the Client is using client service to commit. (3) Post Fraud or Crime, which the client has used the lawyer's service to commit, to mitigate/ rectify further financial/ property damage to another o (b)(4) Disclosure to Obtain Ethics Advice:o (b)(5) Disclosure to Defend Allegation of Wrongdoing/Collect a Fee: (6) to comply with other law or a court order. |
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When is harm “reasonably certain” to occur so as to permit disclosure under this exception?
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When it will be suffered imminently; or,
There exists a present and substantial threat that a person will suffer such harm if you fail to take action to eliminate it. Not an easy call because: If you do “spill the beans” but your judgment, while in good faith, was wrong…it will be seariously damaging to your client: might cause him serious harm / prejudice Alawys try to talk him out of it... Balance the piblic policy with the duty of loyalty & confidentiality. .. 1) is there a presentt & substantial risk? 2) is the disclosure necessary to eliminate/ reduce? Disclosure is last resort. If the murder has already been committed, the lawyers cant discloes, (unless teh person still alive) |
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1.6(b)(4) DISCLOSURE TO OBTAIN LEGAL ADVISE
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DISCLOSURE TO OBTAIN LEGAL ADVISE
You may reveal information relating to the representation of a client to the extent you reasonably believe necessary to secure legal advice about your compliance with the Rules of Professional Conduct. |
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1.B(5) Disclosure to Defend Allegation of Wrongdoing/Collect a Fee
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You MAY reveal information related to the representation of a client to the extent you reasonably believe necessary to:
clear yourself from an allegation of wrongdoing; or collect a fee. can't blackmail the client to comply/ pay |
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RULE 1.6(b)(6) – Disclosure to Comply with Other Law
FAMOUS CASE EXAMPLE |
You MAY reveal information relating the representation of a client
to the extent you REASONABLY BELIEVE necessary to comply with other law or a court order TERRASSOF: Psycholgist didnt warn & the state imposed a duty to warn would be allowable under 1.6(b)(6). |
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Rule 1.6(b)(2) – Pre-Fraud/Crime
WHATS THE POLICY RATIONAL WHATS AN IMPORTANT CAVEAT TO THIS RULE: HOW MUCH INFORMATION DO YOU NEED TO KNOW TO REVEAL? |
You MAY reveal information relating to the representation of a client:
The MERE SUSPICION is not enough to permit disclosure. Belief must have some FOUNDATION IN FACT : DIRECT INFORNATION FROM CLIENT OR SOME OTHER RELIABLE FACT to the extent REASONABLY BELIEVE necessary to PREVENT your client FROM COMMITING CRIME OR FRAUD that is REASONABLY CERTAIN to result in SUBSTANTIAL INJURY to the FINANCIAL OR PORPERTY INJURY of another; and, IN FURTHERANCE OF WHICH THE CLIENT HAS USED, IS USING YOUR SERVICES POLICY RATIONAL: A client who seeks to use your services to commit a crime or fraud FORFEITS THE PROTECTION of attorney - client confidentiality. Keep in mind that the client can PREVENT any disclosure simply by REFRAINING from the wrongful conduct. CAVEAT:While disclosure is discretionary, disclosure may be necessary to avoid a violation of Rule 1.2(d) – assisting your client in the commission of a crime or a fraud. Remember: Inactive assistance (knowledge with no corrective action) is unethical. |
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Rule 1.6(b)(3) – Post Fraud/Crime
WHEN DOES / NOT THIS RULE APPLY? WHY? |
You MAY reveal information relating to the representation of a client:
to the extent you believe REASONABLY NECESSAY to prevent, mitigate or rectify SUBSTANTIAL INJURY to the FINANCIAL OR PROPERTY INTEREST of another that is REASONABLLY CERTAIN to result, or has resulted, from the client’s commission of a crime or fraud IN FURTHURANCE IN WHICH THE CLIENT USED YOUR SERVICES This exception applies in situations where you don’t learn of the client’s crime or fraud until AFTER its commission. In such situations, you have LOST THE OPTION TO PREVENT the wrong under (b)(2) & the client has LOST THE OPTION TO REFRAIN, to prevent disclosure. Doesn't apply IF Not a client at the time the acts were committed. They have a right to hire a lawyer to defend them concerning the offense and have an expectation of confidentiality and attorney-client privilege. |
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WHO TO DO YOU REVEAL
HOW MUCH DO YOU REVEAL |
1) The MERE SUSPICION is not enough to permit disclosure. Belief must have some FOUNDATION IN FACT : DIRECT INFORNATION FROM CLIENT OR SOME OTHER RELIABLE FACT
2) DISCLOSURE MUST BE LIMITED; i. If disclosure is permitted, you may disclose ONLY TO THE COURT & TO OTHERS WHO NEED TO KNOW ii. Appropriate PROTECTION ORDERS or other arrangements should be sought to the fullest extent possible |
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how long does the duty of confidentiality last?
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The duty of confidentiality SURVIVES THE TERMINATION of the attorney-client relationship, and the DEATH of the client/former client!
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RULE 1.18 – The Prospective Client Rule
2) WHAT IS THE COST THAT YOU NEED TO WEIGH IN 3) WHAT CAN YOU DO |
RULE 1.18: Duties to Prospective Client –
The Prospective Client Rule: · Whether you can represent someone against a prospective client depends on whether you are IN POSSESSION OF ANY CONFIDENTIAL INFORMATION OF THAT PERSON THAT CAN BE USED AGAINST THEM IN THE MATTER. · If the answer is YES, YOU CANNOT REPRESENT THE OTHER SIDE ABSENT THE PROSPECTIVE CLIENT’S CONSENT. · THE RULE TREATS PROSPECTIVE CLIENTS LIKE FORMER CLIENTS: A lawyer that has had discussions with a prospective client shall not use or reveal information learned in the consultation, EXCEPT AS RULE 1.9 WOULD PERMIT. 2) Rule 1.18 imposes an OPPORTUNITY COST on consultations with prospective clients. The information you receive from the prospective client may later disqualify you from representing the opponent of the would-be-client. 3) PROETCT YOURSELF Limit the information you receive at an initial consultation. A consultation in which YOU LEARN NOTHING “SIGNIFICANTLY HARMFUL” TO THE PROSPECTIVE CLIENT WILL NOT DISQUALIFY YOU from later representing the other side in the same or related matter. |
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WHAT ARE THE POLICY CONSIDERATION FOR THE ATTTORNEY CLIENT PRIVILAGE
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The privilege is based on several closely-related policy considerations:
Clients should be encouraged to be COMPLETELY TRUTHFUL with their attorneys so that legal advice is based on all relevant facts; Clients will be RELUCTANT to seek legal advice if they fear that their communications will be revealed to others; and, By encouraging full communication between attorney and client, the privilege promotes VOLUNTARY COMPLIANCE with laws and regulations. It is an EVIDENTIARY PRIVILAGE which means that it ONLY arises in the context of litigation. |
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What does the attorney client privilage apply to?
When does the attorney raise it? |
1) APPLIES TO ALL WRITTEN & ORAL COMMUNICATIONS between a lawyer or his agent & client or his agent
2) SOURCE MUST BE THE CLIENT:To be protected, the information must originate from a confidential communication with the client or his agent, NOT THIRD PERSONS 1) It is an EVIDENTIARY PRIVILAGE which means that it ONLY arises in the context of litigation. IF THERE IS NO LITIGATION IN PROGRESS THE ATTORNEY-CLIENT PRIVILAGE IS NOT APPLICABLE. 2) The lawyer is being asked to reveal a confidence WHILE TESTIFYING ; or, 3) The lawyer is asked to surrender a document or other physical object through force of a SUBPEONA (Clients agents can be Client’s Legal Guardian Or Parent of Juvenile) (attorneys agent Employees associated with the Lawyer, Investigator, Expert Witnesses, Trial Consultants, PR Agent/Specialists) |
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what happens to communications outside the attorney client privilage?
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Communications from a NON CLIENT/ CLIENT AGENT no matter what vows or other assurances of confidentiality, are OUTSIDE THE PRIVILAGE.
Instead, Instead, THEY ARE PROTECTED BY THE ETHICAL DUTY OF CONFIDENTIALITY 1.6 |
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How is the client- attorneyprivilage lost ?
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1) Any PUBLIC COMMUNICATION of information confided to you, renders the information no longer protected by the privilege. The privilege is lost.
2) INFORMED WAIVER: A client can CONSENT to waive the privilege. However, such cases are rare. Get it in WRITING 3) CRIME-FRAUD EXCEPTION: The privilege is FOREFITED where the client sought or obtained your services to enable or aid in the planning or commission of a CRIME OR FRAUD. |
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How does the attorney-client privilege differ from the lawyer’s ethical duty of confidentiality?
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THE ETHICAL DUTY OF CONFIDENTIALITY IS VERY BROAD: It renders confidential ALL information obtained in the course of the representation REGARDLESS OF THE SOURCE. .
the Privilege is Very Narrow: i. It only protects communications BETWEEN THE LAWYER & THE CLIENT ; and, ii. It can only be asserted in COURT PROCEEDING iii. It must be ASSERTED by the attorney. |
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Does the attorney-client privilege extend to observations that are the product of privileged communications? If so, is the privilege lost when defense conduct frustrates prosecution discovery?
WHAT OTHER RULE MIGHT BE TRIGGERED? |
SEE BUT DON'T TOUCH
" An attorney should not be a depository for a murder weapon" RULE NUMBER ONE: If client reveals the location of evidence and the lawyer or lawyer’s agent MERELY INSPECT THE EVIDENCE W/O DISTURBING IT , their knowledge of the location of the evidence and observations are PRIVILAGED RULE NUMBER TWO: If the lawyer/lawyer’s agent REMOVES OR DISTURB , the original location and observations are no longer privileged. The PRIVILAGE HAS BEEN DESTROYED. Justice and fairness to the opposing party. (RULE 3.4 prohibits the unlawful obstruction, concealment or destruction of evidence). |
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WHAT DO YOU DO WITH PHYSICAL EVIDENCE? DOCUMENTS?
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Physical Evidence vs. Documents:
1)Objects like weapons and stolen property must be turned over (he may retain it for a reasonable time to prepare for the client’s defense. After a reasonable period, the attorney should turn the weapon over to the prosecutor.) 2) Things like written kidnap plans, murder checklists, ransom notes and maps are treated like physical evidence and must be turned over. 3) BUSINESS RECORDS: used in the commission of a crime are generally treated differently. Exception: If the record is the only copy, it should be treated like physical evidence (ie gun). Regardless if turned over, BUSINESS RECORDS CANNOT BE DESTROYED and may have to be produced pursuant to a subpoena. |
