MPRE: Privilege and Confidentiality

What are some basis for disclosures of confidential information?

o   Prevent substantial Injury or death

o   Prevent clients Fraud or crime

o   Screen for Conflict of Interest

o   Comply with Law or court order

o   Impliedly Authorized to carry out representation

o   Client Informed consent

o   Mitigate financial injury from crime or fraud

o   Ethical advice

o   Establish Defense or claim on lawyers behalf

IF CLAIMED

What are the elements of a confidential communication between an attorney and client

• Confidential: no known presence of a third party

• Communication for the purpose of obtaining or providing legal advice or representation 

When does Attorney-Client Privilege occur?

• Covers the client’s communication to a lawyer the client reasonably believes represents the client and only when the circumstances indicate a desire by the client for confidentiality.

• This privilege applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client.

What are the exceptions of attorney client privilege:  

• Made to enable or aid crime or fraud

• Relevant to a dispute between the client (or former client) and the lawyer

• Relevant to a dispute between parties who claim through the same deceased client or

• Relevant to a dispute between former co-clients who are now adverse to each other

What is the Work Product Doctrine?

Protects documents prepared by or for a party’s lawyer in anticipation of litigation

What are the types of Work Product?

• Opinion

  • almost never discoverable

  • lawyers mental impressions, conclusions, tactics

• Ordinary

  • Discoverable if party shows a substantial need and undue hardship

  • all materials created in anticipation of litigation that contain facts related to the case

General Rule of Confidentiality: a lawyer is prohibited from disclosing any information relating to the representation of a client UNLES:

• Informed consent 

• disclosure impliedly authorized to carry out representation 

• another specific exception