Professional Responsibility
Senechal
Summer 2011
Client-Lawyer Relationship
Rule 1.6 Confidentiality of Information
(a) A lawyer shall not reveal information relating to the 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 (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or prop of another and in furtherance of which the client has used or is using the lawyer's services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or prop 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;
(4) to secure legal advice about the lawyer's compliance with these Rules;
(5) 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 upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or
(6) to comply with other law or a court order.
Comment 2
In the absence of the client’s informed consent, the lawyer must not reveal info relating to the representation.
Comment 4
Paragraph (a) prohibits a lawyer from revealing info relating to the representation of a client. This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected info but could reasonably lead to the discovery of such info by a third person.
Rule 1.6 requires lawyers to protect confidential info “relating to representation of a client.” This covers any info a lawyer learns in connection with a matter the lawyer is handling for a client’s case regardless of whether the info was received from the client or another source.
Info that must be protected as confidential:
All info relating to the matter the lawyer is representing, except info that is “generally known”
Personal info that the client would not want disclosed
Info learned from the client and other sources
Info required before representation (preliminary consultation)
Notes or memoranda the lawyer creates relating to the matter
Consequences if a lawyer fails to protect confidences
Subject to professional discipline
Liable in tort of K for negligent or intentional breach of duty
Disqualified from representation of one or more clients
Enjoined by a Ct for further revelation
Policy of Confidentiality Rule
To facilitate open communication between lawyers and clients – In such cases, the fact of consultation or representation is confidential.
Protection of Info if there is a Reasonable Prospect of Harm to a Client’s Interests
The Restatement prohibits revelation of confidential info only if “there is a reasonable prospect that doing so will adversely affect a material interest of the client or if the client has instructed the lawyer not to use or disclose such info.”
“Adverse effects” includes frustration of the client’s objectives, material misfortune, disadvantage, or other prejudice to the C, financial or physical harm or personal embarrassment. The Restatement articulates a lower standard of secrecy than do the ethical rules.
Whether there is a reasonable prospect of harm to the client depends on “whether a lawyer of reasonable caution, considering only the client’s objectives, would regard use or disclosure in the circumstances as creating an unreasonable risk of adverse effect either to those objectives or to other interests of the client.” This is the Reasonable Prospect Standard.
Exceptions to the Duty to Protect Confidences
The duty to protect “info relating to the representation of a client” is very broad but not absolute.
1. Revelation of Past Criminal Conduct
If the crime is over, the lawyer cannot prevent the harm by revealing it. Lawyers should protect as confidential most information about past criminal activity by clients.
2. The Risk of Future Injury of Death
1.6 allows a lawyer to reveal confidential info “to prevent reasonably certain death or substantial bodily harm.” It doesn’t matter if the harm will be perpetrated by the client or another person.
Death or substantial bodily harm is “reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer harm at a later date if the lawyer fails to take action necessary to eliminate the threat.
In an adverse exam, a doctor does not have an ethical obligation to notify the patient of the damages.
North Dakota Rule 1.6
L is required to reveal information relating to the representation of a C to the extent the L believes reasonably necessary to prevent reasonably certain death or substantial bodily harm.
Model Rules
· Most state rules based on ABA model rules.
· Lawyers are bound by rules of state(s) in which admitted to practice
The rules are not the only regulation of lawyer conduct. The Highest Court in each State, the state bar association, lawyer disciplinary agencies, American Bar Association, Rules of Civil Procedure, Legislative law.
Rule 1.6
· Everything relating to representation is confidential – Regardless of source information
Rule 1.6 (Exceptions 6 or 8?)
· Clients Informed Consent to disclose – Rule 1 (ND does not use the informed consent language)
· Implied authorization to carry out representation
· Reasonably believed necessary to prevent reasonably certain death or substantial bodily harm.
o Rule 1 “Reasonably” and “reasonably believe” defined. Reasonably prudent and competent lawyer – actual belief, reasonable under circumstances.
· Reasonably believed necessary to:
o Prevent client crime or fraud or
o Prevent mitigate, rectify consequences of past client fraud
§ Applies only if substantial financial injury or if the Ls services are used in the crime or fraud.
· Reasonably believed necessary to get advice regarding following the rules
· Reasonably believed necessary for lawyer’s self defense, or to establish claim against client (self protection exception – collect your fee)
· Reasonably believed necessary to comply with law or court order
Rule 1.6 – All exceptions are permissive, not mandatory – Does not require
Rule 1.6 Disclosure
What is the extent reasonably believed necessary?
Take other steps before disclosure
Disclose as little information as possible
Disclose to as few persons as possible
Disclose in manner least likely to prejudice client’s position
Client Crime/Fraud
Rule 1.6(b)(2) – future fraud
Rule 1.6(b)(3) – past fraud, continuing harm
Only if lawyer’s services used in fraud
Client Frauds and Crimes that cause financial harm – The ethics rules permit Ls, under certain circumstances, to reveal a client’s frauds and other financial crimes. Lawyers should not advise or assist their clients to commit crimes or frauds.
Rule 1.2(d): “L shall not counsel a C to engage or assist a client in co
nfidential info?
· Yes – the lawyer should notify the client before using confidential information in self defense and should seek solutions that do not require the lawyer to make the revelation, but L may use the info even if the client does not consent.
Compliance with Law or Court Order
1.6(b)(6) permit’s a lawyer to disclose confidential info to comply with a court order or law. The court order trumps the obligation to protect confidences.
Summary of Exceptions in Rule 1.6 to the Rule against disclosing client Confidences
Situation
Scope of Exception
Client Waives Confidentiality
Disclosure permitted if C gives informed consent. ND does not use informed consent language. North Dakota Rule 1.6 L is required to reveal info relating to the representation of a C to the extent the L believes reasonably necessary to prevent reasonably certain death or substantial bodily harm.
Disclosure needed to represent the client
Disclosure permitted where it is “impliedly authorized” to carry out representation
Past physical harms to people
No exception permits disclosure
Threatened physical harms to people
Disclosure permitted (but not required by 1.6(b)(1) to prevent reasonably certain death or bodily harm (whether by C or not).
Threatened or continuing client fraud or other economic crime
Disclosure to prevent fraud permitted by 1.6(b)(2) if it will result with reasonable certainty to someone’s financial interests or prop and the client used the or is using the lawyer’s services to commit the fraud. Disclosure required under 4.1(b) if those conditions are met ad the revelation is necessary to avoid assisting a criminal or fraudulent act.
Past client fraud or other economic crime
Disclosure permitted by 1.6(b)(3) to prevent, mitigate or rectify substantial economic injury if the C used the L services to commit crime of fraud.
Lawyer needs to obtain ethics advice from another lawyer
Permitted by 1.6(b)(4)
Lawyer needs to prove work done to collect a fee or to defend against misconduct charge
Permitted by 1.6(b)(5)
Court orders disclosure
Permitted by 1.6(b)(6)
Confidentiality
· Duty may apply before attorney/client relationship actually formed
· No confidentiality as between those jointly represented
· Protecting metadata in electronic communications
· “Law firm” policies to protect confidential info (Law Firm – any law office in practice).
Attorney Client Privilege
The privilege gives Ls and Cs a right not to divulge what they say to each other provided that the L and C communicate in confidence outside the presence of third parties for the purpose of delivery of legal services to the C. The difference between confidentiality and “privilege” is that the duty to protect confidences is imposed by the ethical rules, violation of which can result in discipline. Privilege is “evidence law” which governs the kinds of evidence admitted in court.
