Legal Pro Final

Ethical duty of confidentiality

Protects voluntary disclosure of confidential information

2 justifications for duty of confientiality

Normative - promotes strong A/C relationship bonds

Utilitarian - client will share “full and frank” info w/ lawyer even if sensitive and embarassing

Consequences of violating the duty of confidentiality under 1.6

Professional discipline for violating 1.6

Breach of fiduciary duty tort claim

Reputational harm

To whom does the ethical duty of confidentiality apply?

Prospective, former, and current clients

Continues even after the representation has ended - lawyer takes to the grave

How should you talk w/ your client about the duty of confidentiality?

Don’t speak in absolutes -

“Everything you tell me is confidential, BUT i may have to or be permitted to disclose it under limited exceptions”

Mention grounds for waivers/exceptions (CF)

General rule under 1.6(a)

Lawyer may not reveal info relating to the representation unless client gives informed consent, disclosure is impliedly authorized in order to carry out the representation, or permissive exception under (b) applies

What counts as “information relating to the representation”?

Includes info from the client, plus info from witnesses, experts, consultants

Lawyers observations

Fact of the representation or identity of the client itself in sensitive cases

Is info that is generally known still protected by the duty of confidentiality?

Yes, b/c no explicit carveout under 1.6(a)

However, Rst. § 59 does exclude info that is generally known

Under 1.9 (C), info about former client that is generally known may be used to former client’s disadvantange

Generally known - ABA Opinion 17-479

Publicly accessible records =/= generally known

Must be widely disseminated in the community/relevant industry

Can hypos about the matter be considered confidential? (1.6, Cmt. 4)

If “no reasonable likelihood that listener will be able to ascertain the identity of the client or situation involved” —> hypo = fine

However, if info could lead to discovery of protected info, then vague info IS covered by 1.6(a)

Relationship btwn 1.6(a) “impliedly authorized” and waiver of privilege

If attorney discloses info pursuant to 1.6(b) exception that is not in their client’s best interest, this does NOT mean the privilege is waived w/ respect to these communications, b/c lawyer wasn’t “impliedly authorized” to reveal the communications

Thus, info may no longer be confidential in the A/C relationship, but privilege still applies

Takeaways from Your Dinner w/ Anna

Everyone has different levels of comfort w/ what identifying info they share while comporting w/ professional obligations

Stating client’s first name might even be ok, depending on the circumstances

Consider your setting - are you in public?

Consider your firm - does your firm only represent high profile divorce cases, such that giving up a first name “could reasonably lead to discovery” of protected info?

When has a client “impliedly authorized” disclosure such that 1.6(a) general rule does not apply?

Ask whether disclosure is consistent w/ the goals of the reprsentation

Lawyer is impliedly authorized to discuss confidential info w/ others at their firm, unless client has explicitly told them not to (Cmt. 5)

Arguably includes ability to confer re: ethical dilemma, but that gets its own special permissive exception under 1.6(b)(4), underscoring importance

1.6(b)(1) - future harm

Prevent reasonably certain death or substantial bodily harm

Past misconduct could be captured - e.g., “I poisoned my husband this morning at breakfast an hour ago” (he may still be alive, but hanging on)

“Reasonably certain” (1.6, Cmt. 6)

Suffered imminently

Present and substantial threat that person will suffer harm at a later date

“Substantial” (1.0(l))

“Clear and weight importance”

Does wrongful death penalty or wrongful imprisonment trigger 1.6(b)(1)?

Some jurisdictions explicitly allow disclosure in these scenarios - Alaska and Massachussets

“To prevent the wrongful executive or incarceration of another”

Buried Bodies case and 1.6(b)(1)

Attorneys went to the woods to get all the facts (1.16(a)), see if Garrow was telling the truth (1.16(a)), and see if girl was still alive

Could not disclose b/c death was not “reasonably certain” - girls were both dead

Dimensions of risk of future harm exceptions that vary across states

Mandatory vs. permissive disclosure

Crimes or frauds vs. just crimes

Financial/property interests, or just physical harm

Client’s actions only vs. third parties’ actions

NJ’s risk of future harm exception (broad)

Mandatory disclosure when someone threatens to engage in crime/fraud that will result in violence, financial injury OR fraud on tribunal

California’s risk of future harm exception (narrow)

Permissive disclosure

Only when necessary to prevent crime that will cause death/substantial bodily harm

NY Bar Opinion 479 - in response to Buried Bodies

Fine to use confidential client info as a bargaining chip in plea negotiations

Belge and Armani properly adhered to professional duty of confidentiality - “bound by the bond of silence”

Interplay btwn 4.1(b) and 1.6(b)(2)-(3)

Related (but not identical), b/c both rules have a requirement that the attorney be involved somehow to the underlying CF.

Scholars note degree of overlap depends on attorney’s state of mind.

4.1(b) —> must disclose info to avoid assisting client in CF

1.6(b)(2)-(3) —> may disclose info IF client has already wrapped you in by using your services to commit the CF

1.6(b)(2) - future CF

Prevent client from committing a crime or fraud reasonably certain to result in substantial injury to financial interest or property of another, involving lawyer’s services

1.6(b)(3) - future harm from past CF

Prevent, mitigate, or rectify the substantial injury to financial interest or property of another, reasonably certain to result or has resulted from client’s commission of a CF, involving lawyer’s services

1.6(b)(4) - ethical advice

May disclose info to secure legal advice about compliance w/ MRPC

Lawyer @ firm, or retired judge, ethics committee

1.6(b)(5) - self defense

Establish a claim or defense concerning

(1) Controversy btwn lawyer/client - fee dispute

(2) Criminal or civil claim against the lawyer, related to lawyer’s representation of the client - respond to someone alleging lawyer was engaged in fraud

(3) Respond to allegations re: lawyer’s representation (e.g., IAC claim)

Allowed even before official proceeding has begun - but must be linked to some “proceeding” (not simply complaint on Avvo)

If lawyer has received a bad review, can they reveal info related to the representation to clear up?

No - let this “disappear into the ether” (ABA opinion)

Can you reveal info to defend yourself that also harms the client?

Yes, if it falls under 1.6(b)(5)

However, the stem “reasonably believes necessary” applies to all permissive exceptions - so don’t use this as an opportunity to vent/trash talk the client

1.6(b)(6) - comply w/ law or court order

Lawyer may reveal confidential info in response to subpoena OR order from a judge

If judge asks lawyer a question in court, lawyer should resist and cite duty of confidentiality, but if judge orders, lawyer must respond unless privilege also applies

How could Belge/Armani have invoked 1.6(b)(6) to disclose information about the bodies’ locations in Buried Bodies?

To comply w/ the NY public health law requiring reporting of dead bodies to prevent spread of disease

1.6(b)(7) - detect and resolve COIs

Onboarding for new employees - allows for any screens to be set up under 1.10(a)(2)

When can 1.6(b)(7) allow limited revelation of information?

When “substantive discussions regarding the new relationship have occurred” (1.6, Cmt. 13)

What info can be disclosed when lawyer is revealing conflicts check info under 1.6(b)(7)?

Identity of the persons and entities involved, brief summary of general issues, whether matter has terminated or is ongoing (1.6, Cmt. 13)

1.6c - protecting confidential info

Lawyer has a duty to make reasonable efforts to prevent inadvertent or unauthorized disclosure of or unauthorized access to confidential info

Intersects w/ duty under 1.1, Cmt. 8 of understanding risks of technology

California bar opinion - how can lawyers use tech in a way that protects client info?

Consult w/ an IT specialist

Need basic understanding of protective features (e.g., passwords, data recovery, cybersecurity) but don’t need to become an expert

How can lawyers use cloud tech/AI in a way that adheres to 1.6c? (hint: other rules are implicated)

Competently select vendor

Consider client’s data as their property - Store data in a way that adheres to 1.15 - “care of fiduciary” (Cmt. 1)

Supervise cloud storage vendors - 5.3 (what are the terms of the agreement)

Communicate w/ the client - 1.4(a)(2) (storage is a “means” by which ends are to be accomplished)

1.6c - what counts as reasonable efforts?

(1.6, Cmt. 18)

Depends on info sensitivity, likelihood of disclosure w/out additional safeguards, costs of employing additional safeguards, difficulty implementing additional safeguards, whether additional safeguards would “Adversely effect” lawyer’s reprsentation

Rst. §§ 59-60 - ethical duty of confidentiality

Ethical duty of confidentiality is defined more narrowly

§ 59 —> confidential info is all info related to representation that is not generally known

Interplay btwn 1.13c and 1.6(b)(2)-(3)

When representing an organizational client, lawyer may report out about a past or ongoing C/F if “reasonably believes that the violation is reasonably certain to result in substantial injury to the org”

When reporting out, lawyer may reveal info even if 1.6 would not permit disclosure

A/C privilege

Creature of evidence law

Protects the privilege holder from judicially compelled disclosure of communications

Purpose of the A/C privilege

Similar to ethical duty of confidentiality (normative and utilitarian)

Promote “full and frank” communications

A/C privilege is only useful if ppl know its scope (Upjohn)

Rst. § 68 - definition of A/C privilege

A communication

Made between privileged persons

In confidence

For the purpose of obtaining and providing legal assistance for the client

What counts as “communications” for A/C privilege?

Oral or written

By client to lawyer, or by lawyer to client

Includes communicative acts of giving something to the lawyer (Olwell)

Includes attorneys observations that are the direct result of communications with the client (Belge), unless attorney tampers w/ that evidence (Meredith)

What does NOT count as “communications” for A/C privilege?

Attorney’s observations (client came in wearing a bloody shirt)

Underlying docs/facts/evidence handed to attorney

Client’s identity, location, and fee structure

Who counts as “privileged persons”

Lawyer (or someone client reasonably believes is there lawyer) - in their professional capacity

Client (includes prospective clients) - seeking legal advice

Communications must be “in confidence”

Who can be in the room?

Lawyer/client’s agents (e.g., experts, interpreters, guardians, paralegal, accountant-experts, secretaries)

NOT bffs, support ppl

Eavesdroppers do not break privilege unless client knew there was this random third party present

Ruehle - “in confidence” element

CFO gave info to attorneys about back dating stock options, knowing attorneys would be giving this info to SEC investigators

Communications were not “in confidence” and thus NOT privileged, even though Ruehle fell under Upjohn test for constituent communications covered by privilege

Primary purpose test

If primary purpose of communications is to seek legal advice, the entire communication is privileged, even if it has mixed subject matter

Purcell - venting frustrations about building management part of privileged communications w/ attorney, b/c venting is part of seeking legal advice

“Significant purpose” variation of primary purpose test

Generous approach to recognizing privilege

If there are multiple main/primary purposes, if a legal basis is one of the significant purposes, then the entire communication is protected

In re Kellogg

What does NOT count as “for the purpose of obtaining or providing legal advice”

Purely financial/business/moral advice

Look for in-house (more likely business) vs. outside counsel distinction

Upjohn test - which constituent’s conversations w/ org’s lawyer are privileged?

(1) Told to talk to lawyer by supervisor

(2) About matters w/in scope of their employment/unique knowledge

(3) Constituents were aware purpose was to seek legal advice

Upjohn facts/holding

GC of pharma company sent a questionnaire to all foreign general/area managers, told ppl info was “highly confidential,” survey responses sent directly back to GC

Court rejected control group test

Low- and mid-level employees should be included b/c they might “embroil the corp in serious legal difficulties”

Lawyers need all the facts to give good advice - privilege should extent beyond C-suite

When should an org attorney tell a constituent to get their own lawyer?

If constituent’s interests are adverse to org’s, then lawyer should advice them that they cannot represent the constituent, and they should get independent counsel (1.13, Cmt. 10)

General rule for privilege when org client is the government —> civil matters

Privilege extends to communications w/ govt officials in civil matters

Competing approaches for privilege when org client is the government —> criminal matters

In re Grand Jury Invest (2d) —> A/C privilege aplies, lawyers need to be able to fully communicate w/ constituents

In re Grand Jury Subpoena Duces Tecum (8th) —> A/C privilege does NOT apply b/c these are govt actors involved in wrongdoing, public has a right to know, officials can always hire their own independent crim attorneys

Common legal interest doctrine - general rule

If multiple A/C groups want to pool info b/c they’re pursuing a common legal interest, privilege extends across all communications w/in the web of attorneys and clients

Common legal interest doctrine - 2 elements

(1) All clients and attorneys with access to the communication agreed upon the joint approach

(was there a “Joint Defense and Common Interest” agreement?)

(2) Info imparted w/ intent to further the common purpose

(Cross-A/C group communications should be btwn lawyers to ensure appearance of legal purpose) - aligns w/ 4.2, which prevents lawyers from talking w/ other ppl’s clients w/out their attorney’s consent

When is there a “common legal interest”? (Schaeffler)

A third party that has a financial stake in the outcome of a transaction, which may be the subject of litigation/govt investigation (e.g., consortium of banks in Schaeffler had an interest in the tax implications of the Schaeffler restructuring)

When does common legal interest doctrine no longer apply to protect info w/in web?

When adverse parties w/in the pool sue each other, this breaks the privilege

Risk of a joint defense

Waiver of A/C privilege

Client consents to waiver

Client authorizes their agent to waive privilege on their behalf

Client voluntarily discloses privileged info to someone outside the A/C relationship

Inadvertent waiver

What happens if attorney does not assert the A/C privilege on client’s behalf?

Professional discipline (1.1)

Legal malpractice

Under 1.6, Cmt. 15, lawyer should assert all nonfrivolous args that info is confidential, privileged, or protected by other law (WP)

Does disclosure of an underlying fact waive the privilege re: discussions about that underlying fact?

No - treat the underlying facts and communications separately

Selective waiver doctrine

If client waives privilege over communication X in matter 1, client does not necessarily waive privilege over communication X in matter 2

Most courts do NOT recognize the selective waiver doctrine (exception 8th Cir)

In re Pacific Pictures

Court held Toberoff’s compliance w/ subpoena revealing his letter and docs w/out redactions in investigation he initiated w/ govt meant privilege w/ respect to those communications was waived for purposes of DC Comic’s suit against Toberoff

Court highlights tension btwn encouraging full and frank communications w/ privilege and truth-seeking process

Policy rationale for NOT recognizing the selective waiver doctrine

If client was willing to disclose info in matter 1, they didn’t need protection of the privilege to encourage that full and frank communication

Privilege is a shield, not a sword

Subject matter waiver doctrine

If client/attorney voluntarily discloses pieces of communications such that it creates a distorted view of the full conversation/communication, court deems general waiver of the entire subject matter to ensure complete and balanced presentation

Subject matter waiver doctrine - testimonial settings

Courts apply - don’t want to mislead the fact-finder

Subject matter waiver doctrine - non-testimonial settings (In re von Bulow)

Von Bulow’s daughter sought waiver of full communications w/ attorney-author; referenced in book about von Bulow’s life

No subject matter waiver b/c no risk of misleading the fact-finder

Clients / lawyers may inadvertently disclose privileged information. 3 main approaches are…

(1) Inadvertent disclosure does not break the privilege (Ardon)

(2) Inadvertent disclosure breaks the privilege (International Digital)

(3) Inadvertent disclosure does not break the privilege SO LONG AS (1) reasonable efforts to protect info, (2) prompt efforts to claw back (Hydraflow; accord FRE 502; Rst. § 79)

5 Hydraflow factors - analyze when determining whether inadvertent disclosure broke the privilege

1. Reasonableness of precautions taken to prevent disclosure

2. Number of disclosures

3. Extent of the disclosure

4. Promptness of measures taken to rectify the disclosure

5. Whether overriding interests of justice would be served by relieving discloser of its error (catch-all)

Rst. § 79 factors - analyze when determining whether inadvertent disclosure broke the privilege

Importance of content disclosed

Avaialbility/efficacy of additional procedures

Externally imposed time pressures/volume of disclosure

Who made the disclosure (attorney? paralegal?)

Scope of disclosure to non-privileged person

Exceptions to A/C privilege

Privilege never existed in the first place

1. Crime-fraud exception

2. Joint-client exception

3. Self-defense exception

Note - some other protection may apply (confidentiality, work product)

Crime-fraud exception - elements

(1) Intent of client to engage in future CF

(2) Communication w/ lawyer designed to further the CF

(3) CF must be forward looking - bad acts must be in the future

—> note covering up past wrongdoing is a future bad act (obstruction of justice)

Crime-fraud exception - burden of proof

Opposing party that wants communications disclosed has the burden of proving the CF exception applies

Under Zolin, must first present sufficient evidence for prima facie case

Then, judge must engage in in camera review to determine in CF exception applies

Under Zolin, which element of the CF exception must be reviewed in camera?

In camera review is required to determine whether communication was designed to further the CF

In In re Grand Jury Investigation, 9th Cir held lower court erred by ordering docs disclosed after not conducting in camera review to establish 2nd element

How does the CF exception to A/C privilege relate to ethical rules?

1.2(d) - lawyer cannot assist client in committing a crime/fraud

1.1, Cmt. 5 - lawyer must conduct an inquiry into and analysis of the legal and factual elements of a problem

1.16(a)(4) - lawyer must withdraw if client seeks to use or continues to use lawyer’s services to commit or further a crime or fraud, despite lawyer admonishing under 1.2(d) and 1.4(a)(5)

Joint-client exception to A/C privilege

Assume A and B both represented by same lawyer

If client A decides to sue client B, client A’s communications to their joint lawyer are not privileged - client B can use those in their subsequent litigation

Self-defense exception

Communications btwn lawyer and client =/= privileged IF client puts the quality or integrity of the representation at issue (e.g., malpractice, fraud, IAC)

Lawyer cannot use otherwise privileged communications as a back-door retaliation method though

Work product immunity doctrine - definition

Lawyer’s preparation, collection, and assembly of tangible evidence or intangible equivalents, in anticipation of litigation

Examples of tangible WP

Hand-written notes, photographs, memos, tape recordings

Examples of intangible WP

Unwritten, oral, remembered info from lawyer’s convos about the case in preparation for lit

2 types of WP

Ordinary

Core/opinion

Ordinary WP

Transcripts from witness interviews, memo summarizing the interviews

Only subject to disclosure if other side shows (1) substantial need and (2) undue hardship in obtaining in any other way (e.g., witness is dead)

Opinion WP

Lawyer’s mental impressions, strategy, memos about who to depose/who will make a good witness

Tax law analysis/application to restructuring in Schaeffler

Only subject to disclosure in extraordinary circumstances (in reality, never) - policy rationale = encourage lawyers to think/memorialize their work freely, best rep possible

“In anticipation of litigation” means

Docs prepared when an actual case is filed OR prepared before, when litigation could bubble up in the future

Excludes docs prepared in the ordinary course of business

Schaeffler - meaning of “in anticipation of litigation”

EY prepared a memo analyzing tax consequences of the corporate restructuring

Memo contained detailed legal analysis of federal tax implications, potential args Schaeffler could raise

Memo was deemed WP b/c litigation was likely considering how complex the tx was

“Any sophisticated business person would have ordered this kind of analysis, regardless of litigation risk” - court rejects this argument, ignores reality of the situation

Who holds the attorney work product immunity?

The lawyerW

Waivers to WP immunity doctrine

Lawyer fails to object to disclosure

Lawyer discloses WP to third party, and there is a “significant likelihood that an adversary will obtain it” (Sanmina)

Using doc to impeach witness or refresh witness’s recollection (overlap w/ woodshedding)

Client puts lawyer’s work at issue

WP immunity does not apply if client uses lawyer’s services in furtherance of a crime or fraud