Transcript Confidentiality - UMKC School of Law | Powered by Experience

Confidentiality
A Defining
Duty
What are sources of
confidentiality obligations?
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Constitutional law
Disciplinary rules
Fiduciary responsibility
Court rules
Statutes & Admin. Regs.
Court orders
Contract provisions
To whom does an attorney owe
the duty?
• Those whom you
agree to represent
• Those who
reasonably believe
they are clients
• Those you are
appointed to
represent
• Those
contemplating
becoming clients
How can the duty be breached?
• Disclosure
• Use
Remedies for violation
• Exclusion of evidence or testimony
• Damages action for clients
• Professional discipline by state or federal
court
• Disqualification of attorney
• Market sanctions (get fired, don’t get paid,
don’t get trusted)
CONFIDENTIAL
SECRET
Attorney shall not use
or disclose
information relating
to the representation
Court shall not
compel evidence of
private attorneyclient
communications
A kindred spirit… Work Product
• Fed. R. Civ. P. 26(b)(3) "documents and
tangible things * * * prepared in
anticipation of litigation or for trial."
• Fed. R. Crim. Pro. 16(b)
• Discovery protection, not an evidentiary
privilege
• PRIVILEGE • Not discoverable even if special
need for the material
• WORK PRODUCT –
• can be discovered upon a showing
of substantial need, at least if it
does not reveal the mental
impressions of the party's attorney
or other representative
• PRIVILEGE applies only to confidential
communications between attorneys
and their clients or their
representatives.
• WORK PRODUCT applies to any
material prepared in anticipation of
litigation -- an attorney need not be
involved for the work product exception
to take effect.
• PRIVILEGE applies to any
confidential communications to an
attorney when an individual seeks
legal advice or services, whether or
not litigation is expected.
• WORK PRODUCT applies only to
material prepared when litigation is
expected
• Only the client has the right to
waive PRIVILEGE
(though attorney may have the
power to waive)
• An attorney may choose to waive
WORK PRODUCT
Beginnings
When does the duty of confidentiality
begin?
When does the privilege attach?
Endings
• Does the duty or the
privilege last beyond
the death of the
client?
• If so, who “inherits”
the privilege?
EXCEPTIONS TO THE RULES
Balancing interests and providing
room for attorney ethical
discretion
Policies for Exceptions
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Client ownership of information
Protection of the Attorney’s interests
Protection of the interests of the public
Counterbalancing a duty of candor
Subordinating to the law
NON-exception #1 – “Everybody
knows it”
• Attorneys sometimes say that information that is
“generally known” or “in public records” is not
confidential
• It’s obviously not privileged (not “in confidence”)
• But no exception like this in rules of conduct for
current clients (see Rule 1.9 for possible
exception for past clients)
• Restatement implies an exception, but that is
fiduciary law
NON-exception #2 – “Speaking
hypothetically”
• Attorneys sometimes believe that they can talk
all they want about a case, so long as they
speak in “hypothetical” terms.
• Only partially true – see comment 4 to Rule 1.6:
"A lawyer's use of a hypothetical to discuss
issues relating to the representation is
permissible so long as there is no reasonable
likelihood that the listener will be able to
ascertain the identity of the client or the situation
involved."
Exception #1 implied
authorization
Secrets
• Yes, if “impliedly
authorized in order
to carry out the
representation”
• Restatement : “that
advance client’s
interest”
• Examples?
Exception #2: Client express
consent
• Should it be oral
or written
consent?
• Can it be a
general waiver?
• Are there limits
on your ability to
ask for consent?
Consent v. Waiver
• When we speak of privilege, we often speak of
“waiver” rather than consent
• Client owns the privilege.
• Client has the right to assert or waive.
• But attorney is client’s agent; so can assert or
waive for client.
• In absence of client direction, attorney should
protect against destroying privilege.
What waives privilege?
• Disclosure outside the privileged
relationship
– E.g., conversations with a non-essential third
party present
– Placing the subject matter in issue.
– Introduction of evidence
– Failing to assert the privilege
• Cf. joint representations
The Errant Fax
• What obligations does
an attorney have to
protect the
confidentiality of an
opposing party’s
information?
• See Rule 4.4
Exception #3 – To protect the
interests of attorneys
When can you use client
information for yourself?
• If client consents (& it’s reasonable)
• To secure legal advice for yourself
• If reasonably believe disclosure is
necessary to
– Collect a fee or sue your client
– Defend against a charge of misconduct
Collecting fees
• If reasonably believe
disclosure is necessary
to collect a fee or sue
your client
• What are the limits to fee
collection efforts?
Defending against wrongdoing
• Defend against a
charge of attorney
wrongdoing.
• What is a charge?
• How much can be
disclosed?
• To whom?
The SEC Investigation:
May/Must/Will You….
• a. Divulge client confidences as
necessary to defend yourself?
• b. Wait until you are actually
charged with fraud
• c. Protect confidences unless
the client is willing to consent to
disclosure.
Work Product
(Swift, Currie, McGhee & Hiers v. Henry)
• Attorney (Missouri, minority view)
– Work product analysis
– Distinguishes Work product v. End
product
• Client (majority view)
– Unless in anticipation of litigation with
client
– Other good cause to refuse disclosure
Confidences as a Sword
• Can an attorney use confidential &
privileged materials in order to bring a
wrongful discharge claim?
Exception #4: To comply with law or
court order
• First, assert privilege?
• If ordered, obey
• Needn’t go to jail for
client
• How far can
legislation go to
require attorney
disclosure?
Can you disclose client
wrongdoing?
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Jurisdictions are split.
What type of wrong?
What harm?
Past or future?
Attorney’s role?
A dangerous client
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Client reveals intent to hurt another
When do you “know”
Is it a “criminal act”
Will it result in imminent bodily harm?
15. Does the privilege protect
client wrongdoing?
• Crime-fraud exception is broader than
exceptions to confidentiality
18. What if your services have
been used for fraud?
• Can’t disclose in most jurisdictions
• May withdraw
• May “raise the red flag” (I.e. disclaim any
documents)
19. What about client perjury?
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Don’t encourage
Don’t allow
Remonstrate with client if occurs
Disclose if that will rectify the perjury
20. What question do you
have?