CHAPTER 3. The Duty to Protect Client Confidences – central element to model rules
A. The basic principle of confidentiality
1. Protection of “information relating to the representation of a client”
a. Rule 1.6(a) Confidentiality of information
i. Provides that “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).”
ii. Paragraph (b) – see p chart p. 162
a. A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
i. To prevent reasonably certain death or substantial bodily harm;
ii. To prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interest or property of another and in furtherance of when the client has used or is using the lawyer’s services;
iii. To prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;
iv. To secure legal advice about the lawyer’s compliance with these rules;
v. To establish a claim or 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 on conduct in which the lawyer was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or
vi. To comply with other law or a court order
iii. Info that must be protected as confidential:
· All info relating to the rep. of a client unless it is generally known
· Personal info relating to the client that the client wouldn’t want disclosed
· Info learned from the client or other sources
· Info acquired before and after representation
· Notes and memoranda relating to the representation
iv. Comment 3 to Rule 1.6
a) Provides that the rule extends to all information relating to the representation, “whatever its source.”
v. Comment 4 to Rule 1.6
a) Provides that the rule prohibits a lawyer from revealing information that could reasonably lead to the discovery of confidential information by a third person.
b) But, it allows a lawyer to use a hypothetical to discuss issues relating to the representation as long as it’s as long as it doesn’t allow for a listener to ascertain the identity of the client or situation.
b. Consequences for failing to protect confidences
i. Professional discipline
ii. Liable in tort or contract for neg. or intentional breach of duty
iii. Disqualified from rep. clients
iv. Enjoined by co
nt to be disciplined under the rule.
ii. Rule 1.0(d)defines fraud as “conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive.”
a) not necessary that anyone has suffered harm/damages
b) doesn’t capture negligent misrepresentations, but a lawyer might be liable for negligence if he doesn’t exercise the standard of care to discern client fraud
iii. “assisting a fraudulent act”
a) captures the act of a lawyer offering false testimony (when he knows his client is lying) and not disclosing such to the court
b) In some contexts (i.e., sale of securities), omissions or half-truths are fraudulent
a) According to the Rule 4.1(b), an omission is fraudulent if the lawyer intended to deceive
b) Rule 4.1 says a lawyer shouldn’t fail to disclose a material fact unless prohibited by Rule 1.6. So, Rule 1.6 trumps Rule 4.1.
a) Comment 10 to Rule 1.2: Once a lawyer realizes he’s assisting a client in criminal or fraudulent conduct, he must withdraw from representation pursuant to Rule 1.16(a)(1).
b) Comment 3 to Rule 4.2: provides that a lawyer may have three options to avoid assisting a fraudulent act:
2) Noisy withdrawal – give notice of the fact of withdrawal and disaffirm opinion, document, etc.
3) Disclosure of a client confidence to the extent necessary to avoid being charged with assisting client crime or fraud