Legal Ethics: Confidentiality, Privilege, and Disclosure Rules

Rule 1.6(a)

A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation, or the disclosure is permitted by paragraph (b).

Informed consent

Explanations of risks and alternatives to lawyer revealing information.

Hypotheticals use

Permissible for a lawyer to discuss issues relating to their representation with a third party as long as there is no reasonable likelihood that the listener can ascertain the identity of the client or the situation involved.

§ 59

Revelation of confidential information is prohibited 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 information.

§ 60

Disclosure means revealing information in a form that identifies the client or the client matter either expressly or through reasonably ascertainable inference.

§ 60 Comment (c)(i)

Revealing information in a way that cannot be linked to the client involved is not disclosure.

Rule 1.6(b)

A lawyer may reveal information to the extent the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm, prevent client from committing a crime or fraud, prevent, mitigate, or rectify substantial injury to financial interests or property of another, secure legal advice about compliance with Rules, establish a claim or defense on behalf of the lawyer, comply with other law or court order, or detect and resolve conflicts of interest.

Rule 1.6(c)

A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

COMMENT 18

If you make reasonable efforts to prevent access or disclosure, you do not violate 1.6c, even if the information is accessed or disclosed.

Exception to disclosure

You can reveal information if the client gives informed consent or you have implied authorization.

Attorney-Client Privilege (ACP)

A communication is privileged if it occurs between privileged persons, the client reasonably believes it is confidential, and its purpose is to seek or provide legal advice/legal services.

Privileged persons

Lawyers, clients, prospective clients, interpreters, other people who participate in lawyer-client conversations, administrative assistants, paralegals, and other agents of the lawyer or client.

Communication types

Communication can be oral, written, electronic, etc.

Non-privileged communication

A communication not related to legal advice/services, such as business or personal advice, is not privileged.

Assertion of privilege

The privilege can be asserted when the communication occurs between privileged persons, the client believes it is confidential, and the purpose is to seek or provide legal advice/services.

Criminal Cases

Lawyer/client is subpoenaed to testify before a grand jury.

Client Cross-Examination

Client is cross-examined during trial.

Document Seizure

Client's documents are seized from the lawyer pursuant to a search warrant.

Civil Cases Discovery

Discovery is sought from a lawyer or client through depositions, interrogatories, or requests for production of documents.

Lawyer Testimony in Civil Cases

A lawyer is called to testify before a judge or jury at trial.

Legislative Investigations

A lawyer or client is subpoenaed to testify before a legislative committee or an administrative agency.

Reporting Statute

A reporting statute appears to compel a lawyer to disclose communication.

Defense Against Disclosure Penalties

A lawyer seeks to defend against penalties for not having made disclosures.

Non-Communication Protected by ACP

Information obtained by the lawyer through observation or investigation.

Communicative Significance Exception

If the client's act has communicative significance, the lawyer's observation would be protected by ACP.

Fruits of Confidential Communication

ACP protects the 'fruits' of a confidential communication.

Incriminating Evidence Example

If your client tells you the location of incriminating evidence and you go to the location and take pictures, that is protected by ACP.

Client Identity Privilege

Identity of Client: Generally not privileged.

Client Identity Disclosure Exception

When disclosure of client's identity would (1) be the equivalent of revealing a client confidence or (2) would incriminate the client in criminal activity for which the client sought legal advice.

Information from Nonclient Witnesses

Information obtained from nonclient witnesses.

Underlying Facts Protection

Underlying Facts are generally not protected EXCEPT by the 5TH Amendment.

5th Amendment Protection

5TH Amendment protects clients from being compelled to reveal underlying facts in a criminal case.

Presence of Unprivileged Third Parties

When a fact pattern includes a non-lawyer, non-client party, if the party doesn't have a role to play in facilitating the provision of legal advice or services, it is likely their presence will destroy privilege.

Carelessness and Inadvertent Waiver

Carelessness by either lawyer or client may operate as inadvertent waiver.

Conversations with Lawyers

ARE ALL CONVERSATIONS WITH A LAWYER PRIVILEGED? NO!

Work-Product Doctrine (WPD)

WPD is protected by Federal Rules of Criminal Procedure 26(b)(3).

Trial Preparation Materials

Trial preparation: Materials include Documents and Tangible Things.

WDP

Protects documents not covered by ACP because they're not confidential communications between lawyer and client.

ACP

Attorney-client privilege protects confidential communications made for the purpose of seeking legal advice.

Waiver of Privilege

Clients can waive privilege by revealing information to a non-privileged person, which can be deliberate or inadvertent.

Inadvertent Waiver by Attorney

Two tests applied by different jurisdictions: Minority Rule waives privilege for any disclosure; Majority Rule considers factors like reasonableness of precautions and promptness of efforts to remedy error.

Crime-Fraud Exception

The privilege does not protect communications made to further a client's ongoing or future crime or fraud.

Example of Non-Privileged Communication

"How can I get away with burning down my building?" is not privileged.

Example of Privileged Communication

"I'm about to be evicted. I don't know what to do. Sometimes I think about burning the place down" is privileged.

Duty of Confidentiality

Voluntary disclosure of confidential information.

Compelled Disclosure

Compelled disclosure of confidential communications is protected by ACP.

Documents and Tangible Things

These materials may be disclosed if they are otherwise discoverable and the party shows substantial need for the materials.

Substantial Need

The party must show that it has substantial need for the materials to prepare its case and cannot obtain their substantial equivalent by other means without undue hardship.

Protection Against Disclosure

The court must protect against disclosure of mental impressions, conclusions, opinions, or legal theories of a party's attorney.

Documents 'Routinely Kept'

Documents that are not prepared in anticipation of litigation are unlikely to be protected under WPD.

Lawyers Waiving Privilege

Lawyers can waive privilege if they fail to assert it, if the client authorizes them, and MAYBE if they inadvertently reveal information.

Deliberate Disclosure by Lawyer

Lawyers cannot waive privilege if they deliberately reveal information without the client's authority.

Reasonableness of Precautions

One of the factors considered under the Majority Rule for inadvertent waiver is the reasonableness of precautions to prevent disclosure.

Promptness of Efforts

Another factor under the Majority Rule is the promptness of efforts to remedy the error.

Scope and Magnitude of Disclosure

The scope and magnitude of the disclosure is also considered under the Majority Rule.

Fairness to the Opposing Party

Fairness to the opposing party is a factor considered under the Majority Rule for inadvertent waiver.

Seeking Advice About Past Wrong

Seeking advice about a past wrong remains privileged.

Unawareness of Fraudulent Purpose

The exception applies even if the lawyer is unaware the client's purpose is fraudulent or criminal.