Rule 1.6 Confidentiality of Information

261. An attorney represents a client who went

through a divorce several years ago in another state,

and the divorce resulted in a court order for child

support and spousal maintenance. The client then

moved to the attorney’s state, started a new career in

politics, and formed new relationships. She has kept

her previous marriage a divorce a secret, except from

her closest friend and her attorney, because she is

afraid it will affect her new career and public image

Recently, she hired her attorney to handle various

legal matters for her, which included issuing a press

release about her withdrawal from a political

campaign. When news media outlets posted online

about the client’s withdrawal from the race, the

attorney responded to some of the comments that

readers posted, to clear up some misunderstandings.

In one of the attorney’s responses, he mentioned the

client’s previous marriage and divorce. Did the

attorney violate the duty of confidentiality?

 

a) It depends on whether there was a sealed record

in the client’s divorce case.

b) No, because the divorce and court order

regarding child support are a matter of public

record.

c) No, because the client authorized the attorney to

issue the press release, which impliedly

authorized the disclosure of other helpful

information.

d) Yes, because even disclosures of information

contained in the public record must have client

authorization.

d) Yes, because even disclosures of information

contained in the public record must have client

authorization.

262. An attorney is representing a corporate client on

a variety of litigation matters. The attorney receives

a subpoena (compulsory process) for information and

a document relating to one of her corporate clients.

The attorney promptly produces the information and

document required by the subpoena, and then informs the client.

Could the attorney be subject to discipline for this action?

 

a) Yes, because she did not consult first with the

client before making the disclosure.

b) Yes, because it was incompetent for her to

believe that a subpoena could have legal force

binding a corporate entity, as opposed to

individuals.

c) No, because the client is a corporation, not an

individual.

d) No, because she was acting under a subpoena

a) Yes, because she did not consult first with the

client before making the disclosure.

263. An attorney is a partner in a seven-lawyer firm.

The client retained the attorney to handle his

workers’ compensation matter. Yet the attorney did

not discuss with the client that he would normally

disclose to the other partners in the firm some of the

details about his cases and clients. At the weekly

meeting of the partners, as everyone discussed their

pending cases, the attorney explained the client’s

case and solicited input from the partners. One

partner had an ingenious suggestion that would have

been quite helpful to the client’s case. The attorney

mentioned to the client in their next phone call that

one of his partners had made a brilliant suggestion

that could turn the case in the client’s favor. The

client was upset that the attorney had discussed the

case with anyone else. Is the client correct that the

attorney should not have discussed the case with the

others at the firm?

a) Yes, because a lawyer has a duty to preserve the

confidentiality of client information, even from

other lawyers in his law firm, unless the client

expressly authorizes disclosure.

b) Yes, because the disclosure automatically

created potential conflicts of interest for the other

lawyers in the firm who might represent clients

with adverse interests to this client.

c) No, because lawyers in a firm may disclose to

each other information relating to a client of the

firm, unless the client has instructed that certain

information be available only to specified

lawyers.

d) No, because in this case the disclosure yielded a

brilliant suggestion from another lawyer that was

immensely helpful to the case, which offsets any

potential injury to the client from the disclosure.

c) No, because lawyers in a firm may disclose to

each other information relating to a client of the

firm, unless the client has instructed that certain

information be available only to specified

lawyers.

264. Client, a large auto dealer, retains an attorney to

represent him in a bankruptcy case. This attorney’s

firm represents a bank, through which the client has

several large loans that covered loans for the

dealership. The loans are all contained in the

bankruptcy. The attorney is concerned about whether

there is a conflict, so he contacts a lawyer friend of

his. While explaining his dilemma, the attorney tells

Friend the name of the dealer. Is the attorney subject

to discipline?

a) Yes, because the attorney disclosed more than

what details were necessary to accomplish his

purpose.

b) Yes, because attorneys shall not discuss client

matters with other lawyers not also serving as

counsel for their client.

c) No, because attorneys may discuss their cases

with other lawyers to ensure they are following

the rules of professional conduct.

d) No, because the restrictions regarding

confidentiality only apply in criminal cases.

a) Yes, because the attorney disclosed more than

what details were necessary to accomplish his

purpose.

265. A client hired an attorney to represent her in a

burglary charge. During a meeting with the attorney

and with the understanding that any information

would be confidential, the client advised the attorney

about a murder she committed. A wrongfully-

accused man was presently on trial for that same

murder. Eventually, the attorney was able to

negotiate a plea deal for the client on her burglary

charge. They finalized the plea deal and the

attorney’s representation ended. Soon thereafter, the

attorney discovered that a jury had convicted an

innocent man for the murder the client had

committed and confessed to the attorney. The

wrongfully-convicted men received a life sentence,

without the possibility of parole. The attorney

contacted the District Attorney’s office that handled

the murder trial and left an anonymous tip stating that

the client confessed to committing the murder. Was

the attorney’s conduct proper?

a) Yes, because attorneys have a duty to reveal

information, even if confidential, that relates to a

crime or fraud committed by his client.

b) Yes, because attorneys no longer have a duty not

to disclose information relating to the

representation of a client once the attorney’s

representation of that client terminates.

c) No, because an attorney must not leave such tips

anonymously, but must make themselves

available for questioning and for testifying if

making any tip regarding a crime or fraud

committed by one of his clients.

d) No, because attorneys cannot disclose client

representation information and the death had already occurred, therefore, the disclosure would

not prevent certain death or substantial bodily

injury.

d) No, because attorneys cannot disclose client

representation information and the death had already occurred, therefore, the disclosure would

not prevent certain death or substantial bodily

injury

266. An attorney has been practicing for many years,

and he is now representing a client who is a notorious

celebrity-turned-criminal in a criminal case involving

drug charges. The attorney is confused about

whether he may publicly disclose information that he

learned in confidence from his client if the

information is already a matter of public record, and

his research indicates there is a split of authority on

this question. Seeking clarification, the attorney calls

another lawyer who specializes in lawyer malpractice

and lawyer disciplinary matters to seek advice about

what course of action would comply with the Rules

of Professional Conduct. The other lawyer, an expert

in legal ethics, agrees to provide an opinion and to

keep the conversation a secret. The attorney tries to

use a hypothetical to explain the problem, but given

the client’s national reputation and celebrity status,

the other lawyer knows immediately who the client

is, and can easily surmise the nature of the

confidential information. In addition, the attorney

mentions that his client is secretly a bisexual and has

been having an affair with both the male and female

hosts of a nationally televised morning talk show,

though neither of them is aware that the other is

having an affair with the same person. Is the attorney

subject to discipline for disclosing confidential

information about his client?

a) Yes, because the attorney used a hypothetical

that was obvious enough that the other lawyer

immediately knew the identity of the client and

the client’s information that the attorney was

supposed to protect.

b) Yes, because the lawyer revealed more client

information than was necessary to secure legal

advice about the lawyer's compliance with the

Rules

c) No, because a lawyer may reveal information

relating to the representation of a client to secure

legal advice about the lawyer's compliance with

the Rules, even when the lawyer lacks implied

authorization to make the disclosure.

d) No, because a lawyer may disclose confidential

information to another lawyer, assuming the

other lawyer promises to keep the conversation

secret, and the other lawyer has a reputation for

complying with the ethical rules.

b) Yes, because the lawyer revealed more client

information than was necessary to secure legal

advice about the lawyer's compliance with the

Rules

267. While representing a client, an attorney learned

confidential information about the client’s previous marriage and divorce, which occurred many years

before in another country. Before the attorney could

conclude the matter, the client terminated the

representation. Over the next three years, the now-

former client became a well-known celebrity, and her

prior marriage and divorce received widespread

public attention in that region. Very recently, the

state bar journal interviewed the attorney about his

career and his greatest achievements. One question

pertained to the representation of the client who

became a celebrity. The attorney mentioned that at

the time, the client was an unknown figure and her

previous marriage were family secrets. The

interviewer was not well-informed about this

celebrity and was surprised to hear that the individual

had been married and divorced in another country.

The former client had never authorized the attorney

to discuss her legal matters, but the Model Rules

provide a “generally known” exception to the duty of

confidentiality to former clients. Would that

exception apply to the attorney’s disclosure of the

marriage and divorce during the interview?

a) Yes, because the information received

widespread public attention in that area.

b) Yes, because the representation ended when the

client fired the attorney, and the duty of

confidentiality no longer applied.

c) No, because the “generally known” exception

applies only after the client’s death.

d) No, because the “generally known” exception

does not apply to disclosures by the attorney

about former clients.

d) No, because the “generally known” exception

does not apply to disclosures by the attorney

about former clients.

268. Small Firm is considering hiring an attorney,

who currently works for Big Firm, in a lateral move.

The attorney is a transactional lawyer, so none of the

information he possesses is “privileged” in that it was

not in anticipation of litigation. To facilitate the

checks for conflicts of interest, the attorney discloses

to Small Firm the clients he has represented while at

Big Firm. This includes the names of persons and

issues involved in the matters, as well as names and

issues for matters handled by other lawyers in the

firm about which the attorney had overheard or

otherwise acquired some confidential information.

Small Firm uses the information solely for checking

about potential conflicts of interest before making an

offer of employment to the attorney. The attorney

did not ask any of the clients for authorization to

disclose the representation or the nature of the issues

involved in their matters. Was it proper for the attorney to disclose this confidential information

without the consent of the clients?

a) Yes, so long as the attorney informs the clients

subsequently that such disclosures have

occurred.

b) Yes, because the attorney disclosed the

information solely to detect and resolve conflicts

of interest arising from the lawyer’s change of

employment.

c) No, because the attorney did not obtain consent

or authorization from the clients before

disclosing this information.

d) No, because the attorney disclosed not only the

clients that he himself represented, but also

clients of other lawyers in his firm.

b) Yes, because the attorney disclosed the

information solely to detect and resolve conflicts

of interest arising from the lawyer’s change of

employment.

269. An attorney works for a state-operated legal aid

clinic, which under a state statute counts as a social

service agency. The state has a mandatory reporting

law for child abuse, which statutorily requires

employees of social service agencies to report any

instances of child abuse they discover among their

clients or constituents. The attorney met with a

prospective client and her child to discuss potential

representation at a welfare termination hearing. The

prospective client did not meet the agency’s

guidelines to be eligible for free legal representation,

however, so the attorney had to decline the case.

Nevertheless, it was evident during the interview that

the prospective client’s child was the subject of

serious physical abuse – a black eye, cigarette burns

on her arms and neck, bruises on the backs of her

legs, and a demeanor of cowering in fear around

adults. The attorney wanted to talk to the mother

about it, but the attorney has been unable to reach her

since declining to represent her. Must the attorney

report the prospective client for child abuse?

a) Yes, because state law requires the disclosure,

and a lawyer may reveal information relating to

the representation of a client to the extent the

lawyer has a reasonable belief that it is necessary

to comply with other law.

b) Yes, because the mother was only a prospective

client who was ineligible for representation by

the attorney, so the attorney owed her no duty of

confidentiality.

c) No, because the exceptions to the duty of

confidentiality merely permit disclosure, so the

attorney “may” report the incident, but there is

no duty to do so.

d) No, because the attorney met the prospective

client only once, and does not know if the abuse

occurred at the hands of her mother, or if the child was the victim of a crime at the hands of

someone else, and it is not the mother’s fault.

a) Yes, because state law requires the disclosure,

and a lawyer may reveal information relating to

the representation of a client to the extent the

lawyer has a reasonable belief that it is necessary

to comply with other law.

270. An employee of Conglomerate Corporation

retained an attorney to advise her about a potential

claim against her employer. Like most corporate

employees, this client has a cubicle workstation with

a computer assigned for her exclusive use at work.

Conglomerate Corporation’s written internal policy

states that the company has a right of access to all

employees' computers and e-mail files, including

those relating to employees' personal matters.

Nevertheless, all the employees sometimes use of

their computers for personal matters, and most send

some personal e-mail messages, whether from their

personal or office e-mail accounts. The attorney

expects that the employee will sometimes use her

computer at work to communicate with the lawyer.

Does the attorney have an affirmative ethical duty to

warn the employee about the risks this practice

entails?

a) The attorney does not need to warn the client

because any correspondence between the client

and the attorney would have already the

protection of attorney-client privilege, even if the

employer reads the emails.

b) The attorney does not need to warn the client

because the pre-existence of the written, internal

policy means there is no reasonable expectation

of privacy in the emails, and therefore the

information would not be confidential.

c) The attorney has an ethical duty to warn the

client, and a duty to warn the employer that the

client’s communications with her attorney are

privileged and exempt from the company’s

internal policy.

d) The attorney has an ethical obligation to warn

the client not to communicate about the matter

via her work computer through any email

account, and a duty to refrain from emailing the

client’s workplace email account or responding

to emails from the client’s workplace email

account.

d) The attorney has an ethical obligation to warn

the client not to communicate about the matter

via her work computer through any email

account, and a duty to refrain from emailing the

client’s workplace email account or responding

to emails from the client’s workplace email

account.

271. An insurance company retained an attorney to

defend both the insured employer and one of its

employees, whose conduct is at issue and for which

the employer might be vicariously liable. During a

private consultation with the attorney, the employee

recounts some facts about the incident that are self-

incriminating. In fact, the confidential information that the employee shared with the attorney suggests

that the employee was acting outside the scope of his

employment at the time, and his actions were also

outside the scope of the employer’s insurance

coverage. The employee had a reasonable belief that

he had client-lawyer relationship with the attorney,

and the employee did not understand the legal

implications of his admissions. In subsequent

interviews with other witnesses, the attorney

corroborated this information. It appeared to the

attorney that the insurance company could have a

contractual right to deny coverage for the employee’s

conduct, and the employer could invoke scope-of-

employment principles to defend against its own

liability to the plaintiff. What would the ethical rules

require the attorney to do under these circumstances?

a) The attorney must disclose the information to the

other clients in the representation, that is, the

insurer and the employer, because the facts

directly impact their legal rights and liabilities.

b) The attorney cannot disclose the information to

anyone, and must withdraw from representing

the employer, the employee, and the insurer.

c) The attorney must make a “noisy withdrawal”

from representing the employee and the

employer, disaffirming any previous statements,

information, or opinions rendered in the matter.

d) The attorney should reveal only enough

information to obtain informed, written consent

from the insurer and the employer to continue

representing all three in the matter.

b) The attorney cannot disclose the information to

anyone, and must withdraw from representing

the employer, the employee, and the insurer

272. A wealthy client invited his attorney to visit the

client’s lavish home, so that they could update the

client’s will and other estate planning instruments.

They updated these documents every year. On this

occasion, a few others were present during their

conversation about the client’s estate planning issues:

the client’s longtime business partner, the client’s

new girlfriend, a housekeeper, one of the client’s

grown children, and the client’s personal physician,

who had stopped by for a social visit. Two

individuals would be necessary to witness the

execution of an updated will, so the attorney was glad

to have others present. During the conversation, as

an aside, the business partner mentioned some

upcoming litigation that was in the news, a lawsuit

between a major insurance carrier and a

pharmaceutical company related to the current

epidemic in opioid abuse. No one present was a party to the anticipated litigation, but many investors

were following it with great interest. Afterward, the

attorney wrote personal notes about the meeting,

including who was present and what each person had

said. A year later, the client died, and litigation

ensued over the client’s estate. Which of the

following would apply to the attorney’s notes and

mental recollections about the conversation with the

client and others that were present?

a) The attorney’s ethical duty of confidentiality to

the client.

b) d) The attorney work product doctrine.

c) Attorney-client privilege.

d) A duty of loyalty to the others present.

a) The attorney’s ethical duty of confidentiality to

the client.

273. An attorney was the managing partner at a firm.

The firm had current, up-to-date network security,

firewalls, password protection, email encryption, and

so on. As managing partner, the attorney would

revisit this issue every year in January, checking with

the relevant vendors to see if there were important

software updates or new products that the firm

needed. One January, a vendor was installing new

software and discovered that the firm had suffered a

significant data breach the previous summer that

went unnoticed. Hackers had used sophisticated

methods to bypass conventional firewalls and other

mainstream security features, and they had accessed

confidential client information. The vendor

explained to the managing partner that there was no

reason for such events to go unnoticed, because low-

cost products and services were available to monitor

for data breaches. Could the firm, or at least the

managing partner, be subject to discipline for failing

to monitor for any breaches in data security?

a) The firm is not subject to discipline, but the

clients may demand contractually that the firm

constantly monitor for a data breach, and the

firm could be liable for malpractice.

b) No, the Model Rules require lawyers to have

adequate protections against a data security

breach, not necessarily to monitor constantly for

attacks and breaches.

c) Yes, lawyers must employ reasonable efforts to

monitor the technology and office resources

connected to the internet, external data sources,

and external vendors providing services relating

to data and the use of data.

d) Yes, competence in preserving a client’s

confidentiality is a strict liability standard and requires the lawyer to be invulnerable or

impenetrable

c) Yes, lawyers must employ reasonable efforts to

monitor the technology and office resources

connected to the internet, external data sources,

and external vendors providing services relating

to data and the use of data.

274. An attorney was a partner at Big Firm, which

represented Conglomerate Corporation in their

corporate merger negotiations with Giant Company.

Big Firm had state-of-the-art network firewalls, virus

protection, password protection, and other data

security features in place. Nevertheless, one Friday

evening some hackers managed to breach Big Firm’s

networks and access client information and partner

emails, for purposes of engaging in insider trading.

The firm detected the breach within a few hours and

notified state and federal law enforcement. The stock

exchange had closed for the weekend, and law

enforcement managed to apprehend the hackers over

the weekend, before they had a chance to review the

stolen information and share useful data or engage in

illegal stock trades. The clients suffered no losses or

adverse effects, but they could have. The partners at

Big Firm maintain that they should not be subject to

discipline for failure to protect their clients’

confidential information, because they had all the

latest data security measures in place, though

technology is constantly changing. Are they correct?

a) Yes, unauthorized access to, or disclosure of,

client information does not constitute a violation

of the Model Rules if the lawyer has made

reasonable efforts to prevent the access or

disclosure.

b) Yes, even if their network security was

inadequate, the clients did not in fact suffer any

harm to their legal or commercial interests, and

the firm responded to the incident promptly

enough.

c) No, a firm’s competence in preserving a client’s

confidentiality is a strict liability standard that

requires the lawyer to be invulnerable or

impenetrable.

d) No, it depends on whether the customers had the

level of protection they expected when they hired

the firm to represent them.

a) Yes, unauthorized access to, or disclosure of,

client information does not constitute a violation

of the Model Rules if the lawyer has made

reasonable efforts to prevent the access or

disclosure.