Chapter 3: The Duty to Protect Client Confidences
1.6: Rule of Confidentiality: A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b) –[exceptions].
1.6(b): A lawyer MAY reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary. àbf disclosing information under this paragraph, the lawyer should try to persuade the client to take action that will obviate the need for disclosure. If information is revealed, it should be as narrow as possible and disclosed to as little people as possible.
1.6(b)(1): information can be revealed to prevent reasonably certain death or substantial bodily harm.
1.6(b)(2): to prevent the client from committing a CRIME OF FRAUD that is reasonably certain to result in substantial injury to the financial interests of property of another and in furtherance of which the client has used or is using the lawyer’s services.
1.2(d) can not knowingly assist/counsel client with criminal activity.
–attorney can be charged with aiding abetting/conspiring.
1.4 requires that attorney communicate with client-to keep client informed.
Hypo 1: Bobby, Defense attorney and Helen, a Prosecutor, are romantically involved. Bobby overhears Helen discussing an imminent raid on the telephone that the police intend to effectuate on Bobby’s client’s house. Two cops are killed in a firefight.
Questions to ask:
1. Who is the client?
2. Does the lawyer owe a professional duty to Helen to not disclose overheard information to his client?
Rule 8.3: Duty to report fellow attorney’s misconduct-in some jurisdictions this will be an absolute duty. The Model Rules qualifies this duty by confidentiality. (don’t have to break confidentiality in order to report misconduct under 8.3).
Majority: Lawyers can not break duty of confidentiality in reporting misconduct or incompetence if it will hurt his client.
Rule 1.1: duty to be a competent lawyer.
Doctrines/Rules that Overlap:
1. Duty of Confidentiality;
2. Attorney-Client Privilege;
3. Work Product
**The policy that is being promoted: full disclosure by client and communication between attorney and client.
What is the scope of the duty of confidentiality: any information relating to the representationàbroad standard.
Scope of attorney client privilege is much more narrow.
You can provide hypos, but the parties must be unidentifiable.
**Revelation of Past Criminal Conduct, p. 164
People v. Belge: p. 169
Dead Bodies Case: does a lawyer have a duty to disclose where dead bodies are located when reported to you by client if there is an ordinance requiring the public to report location of dead bodies?
There was a statute in NY that criminalized the failure to report a dead body-public health ordinance. How does that affect lawyer’s duty of confidentiality?
Court dismissed the criminal charges against the attorney of violating the public health ordinance
You have to balance the interests-health issue v. client’s representation and duty of confidentiality.
-the court also discusses the client’s 5th amendment rt against self incrimination. The court reasons that if the attorney is obligated to disclose then the 5th amendment will basically be useless.
Question to ponder: was he required to not disclose? The rules say that he could not disclose.
McClure case: client who told lawyer that he kidnapped a couple of people two weeks prior and he tied them up with no food or water. The lawyer told the authorities what the client had told him, and the client was charged with two additional homicides. Had the lawyer provided ineffective assistance of counsel in violation of 1.6? Did the lawyer prevent substantial certain death or bodily harm?
Rule 3.4: Duties regarding tangible evidence
Rule 2.3: Regulates Opinion L
nfidential information to benefit another one of his clients? The scenario in this case is when you have confidential information about a piece of land that your client decides not to purchase. Can the attorney now buy the land that the client has decided not to buy?
1.8(b): does not prohibit a lawyer from using confidential information obtained from one client to benefit another client so long as the first client gives informed consent or is not disadvantaged by the use of the information.
Note: an attorney who is advantaged by confidential information obtained through representation of a client should get informed consent if there is a possibility that your client may somehow be disadvantaged by your move.
Chapter 4: Attorney-Client Privilege
Privilege only comes into play in certain situations, usually in litigation situations.
The privilege is an evidentiary doctrine.
Privilege Test: Much more narrow than confidentiality test.
Between attorney and client
Must be reasonably expected by the client to be confidential
For purpose of obtaining legal advice
Privilege does not apply to communications between attorney and witnesses or any other person other than the client.
Privilege is narrow because the courts must mitigate the defeat of the truth finding process.
Bringing a friend to a meeting defeats the attorney-client privilege. Exception: when third person is necessary to facilitate the communication (translator, parent of a minor).
Is a cell phone conversation with a client privileged? Depends on the jurisdiction. Simple answer is that the circumstances will determine this answer: expectation