PR: Confidentiality and Privilege

Duty of Confidentiality

A lawyer must not reveal any information relating to the representation of a client unless (1) the client consents; or (2) an exception applies. A lawyer is also generally prohibited from using confidential information that is not generally known to the client’s disadvantage unless the client consents or an exception applies. A lawyer also has an affirmative duty to take reasonable measures to prevent unauthorized access to or inadvertent disclosure of the client’s confidential information

Broad Scope of Confidentiality

The duty of confidentiality applies regardless of whether the client request it be kept “confidential” or whether its revelation might harm or embarrass the client. It applies regardless of the source of the information and prevents all types of disclosure

Confidentiality Timing

The duty applies to info gathered during consultations with prospective clients and continues to apply after the ACR has terminated and even after the client has died

Disclosing Info Excepted from the Duty of Confidentiality

Where an exception applies, the lawyer may disclose a client’s confidential info only to the extent reasonably necessary to meet each exception. Additionally, the exceptions PERMIT but do not require the lawyer to disclose the confidential info

Confidentiality: Consent or Implied Authority

A lawyer may reveal info relating to the representation of a client if the client gives informed consent or if the disclosure is impliedly authorized in order to carry out representation (such as disclosure with other members of the firm or outside contractors working on the matter)

ABA Confidentiality Exception: Death and SBI

A lawyer MAY reveal information to prevent reasonably certain death or substantial bodily harm

California Confidentiality Exception: Death or SBI

California requires that the disclosure must be to prevent a criminal act (ABA does not specify) that is likely to result in death or SBI. Before disclosure, the lawyer must (reasonably) make a good faith effort to persuade the client not to commit or continue the criminal act or to pursue a course of conduct that will prevent the crime. The lawyer must also inform the client of the lawyer’s ability or decision to reveal the information. This is the only FORMAL exception in the California rules.

ABA Exception: Prevent or Rectify Substantial Financial Loss

A lawyer may disclose confidential information to prevent the client from committing a crime or fraud that is reasonably certain to cause substantial financial loss to a person, if the client is using or has used the lawyer’s services in furtherance of the crime or fraud. Disclosure is also allowed to rectify or mitigate the financial loss if the crime has already occurred

Fraud and Substantial Financial Loss Exception: California

California does not recognize a financial loss exception

Confidentiality Exception: Defend Self or Establish Claim Against Client

A lawyer may disclose confidential information about the client’s matter if the client: (1) sues for malpractice; (2) brings disciplinary actions against the lawyer; or (3) refuses to pay the lawyer. Disclosure is limited to what is necessary to defend or establish a claim

Confidentiality Exception: Obtain Legal Ethics Advice

The ABA allows a lawyer to disclose confidential info to obtain confidential legal advice about the lawyer’s personal duty to comply with legal ethics rules. California does not recognize this exception

Confidentiality Exception: Addressing Conflict Resulting from Org Change

A lawyer may reveal info to detect and resolve conflicts of interest arising from their change of employment or changes in a law firm’s composition or ownership. A lawyer MUST NOT reveal info that would compromise the ACP or otherwise prejudice the client. Routine conflict checks within a firm are impliedly authorized. California does not recognize this exception

Confidentiality Exception: Complying with Court Order or Law

A lawyer is permitted to comply with a court order or other law requiring the lawyer to disclose information about a client, but the lawyer should try to challenge the order and seek appellate review before disclosure. Other ethics rules, namely outside reporting of corporate violations (permitted) and candor to the tribunal (required) supersede confidentiality. CA courts have recognized this exception, but other ethics rules generally do not supersede the duty of confidentiality in California

ACP Scope

Only applies to communications that pertain to legal services. If the client is a person, the privilege applies only to communications that pertain to legal services, but when the client is a corporation, communications with corporate employees are generally privileged if: (1) they are directed and authorized by the corporation; and (2) concern the employee’s duties.

California ACP Scope

In California, the ACP terminates after the client’s death when: (1) the client estate is settled; and (2) the personal representative is discharged

ACP vs Confidentiality

ACP is much narrow in scope. ACP is an exclusionary rule of evidence law and only covers confidential communications

Main Exceptions to ACP (General)

(1) Where the client seeks the attorney’s services to enable or aid anyone to commit a future crime or fraud; (2) to a communication that is relevant to an issue of breach of the duties arising out of the ACR or where the client has otherwise put the legal services at issue in the case; (3) in civil litigation between multiple persons who were formerly joint clients of the lawyer; and (4) in certain situations where the lawyer is called to give evidence about the competency or intention of a client who has attempted to dispose of property by will or inter vivos transfer

Main Exceptions to ACP: California

California maintains all the general exceptions and imposes an additional one: when disclosure is necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in a person’s death or substantial bodily injury

Confidentiality Exceptions

(1) Death or SBI; (2) seeking legal ethics advice (ABA only); (3) firm conflict of interest (ABA only); (4) establishing a claim or defense against a client (ABA only); (5) law or court order; and (6) financial loss or fraud