Confidentiality A Defining Duty

What are sources of confidentiality obligations? Constitutional law Disciplinary rules Fiduciary responsibility Court rules Statutes & Admin. Regs. Court orders Contract provisions

To whom does an attorney owe the duty? Those whom you agree to represent Those who reasonably believe they are clients Those you are appointed to represent Those contemplating becoming clients

How can the duty be breached? Disclosure Use

Remedies for violation Exclusion of evidence or testimony Damages action for clients Professional discipline by state or federal court Disqualification of attorney Market sanctions (get fired, don’t get paid, don’t get trusted)

Attorney shall not use or disclose information relating to the representation Court shall not compel evidence of private attorney- client communications CONFIDENTIAL SECRET

A kindred spirit… Work Product Fed. R. Civ. P. 26(b)(3) "documents and tangible things * * * prepared in anticipation of litigation or for trial." Fed. R. Crim. Pro. 16(b) Discovery protection, not an evidentiary privilege

PRIVILEGE - Not discoverable even if special need for the material WORK PRODUCT – can be discovered upon a showing of substantial need, at least if it does not reveal the mental impressions of the party's attorney or other representative

PRIVILEGE applies only to confidential communications between attorneys and their clients or their representatives. WORK PRODUCT applies to any material prepared in anticipation of litigation -- an attorney need not be involved for the work product exception to take effect.

PRIVILEGE applies to any confidential communications to an attorney when an individual seeks legal advice or services, whether or not litigation is expected. WORK PRODUCT applies only to material prepared when litigation is expected

Only the client has the right to waive PRIVILEGE (though attorney may have the power to waive) An attorney may choose to waive WORK PRODUCT

Beginnings When does the duty of confidentiality begin? When does the privilege attach?

Endings Does the duty or the privilege last beyond the death of the client? If so, who “inherits” the privilege?

EXCEPTIONS TO THE RULES Balancing interests and providing room for attorney ethical discretion

Policies for Exceptions Client ownership of information Protection of the Attorney’s interests Protection of the interests of the public Counterbalancing a duty of candor Subordinating to the law

NON-exception #1 – “Everybody knows it” Attorneys sometimes say that information that is “generally known” or “in public records” is not confidential It’s obviously not privileged (not “in confidence”) But no exception like this in rules of conduct for current clients (see Rule 1.9 for possible exception for past clients) Restatement implies an exception, but that is fiduciary law

NON-exception #2 – “Speaking hypothetically” Attorneys sometimes believe that they can talk all they want about a case, so long as they speak in “hypothetical” terms. Only partially true – see comment 4 to Rule 1.6: "A lawyer's use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved."

Exception #1 implied authorization Yes, if “impliedly authorized in order to carry out the representation” Restatement : “that advance client’s interest” Examples? Secrets

Exception #2: Client express consent Should it be oral or written consent? Can it be a general waiver? Are there limits on your ability to ask for consent?

Consent v. Waiver When we speak of privilege, we often speak of “waiver” rather than consent Client owns the privilege. Client has the right to assert or waive. But attorney is client’s agent; so can assert or waive for client. In absence of client direction, attorney should protect against destroying privilege.

What waives privilege? Disclosure outside the privileged relationship –E.g., conversations with a non-essential third party present –Placing the subject matter in issue. –Introduction of evidence –Failing to assert the privilege Cf. joint representations

The Errant Fax What obligations does an attorney have to protect the confidentiality of an opposing party’s information? See Rule 4.4

Exception #3 – To protect the interests of attorneys

When can you use client information for yourself? If client consents (& it’s reasonable) To secure legal advice for yourself If reasonably believe disclosure is necessary to –Collect a fee or sue your client –Defend against a charge of misconduct

Collecting fees If reasonably believe disclosure is necessary to collect a fee or sue your client What are the limits to fee collection efforts?

Defending against wrongdoing Defend against a charge of attorney wrongdoing. What is a charge? How much can be disclosed? To whom?

The SEC Investigation: May/Must/Will You…. a. Divulge client confidences as necessary to defend yourself? b.Wait until you are actually charged with fraud c.Protect confidences unless the client is willing to consent to disclosure.

Work Product (Swift, Currie, McGhee & Hiers v. Henry) Attorney (Missouri, minority view) –Work product analysis –Distinguishes Work product v. End product Client (majority view) –Unless in anticipation of litigation with client –Other good cause to refuse disclosure

Confidences as a Sword Can an attorney use confidential & privileged materials in order to bring a wrongful discharge claim?

Exception #4: To comply with law or court order First, assert privilege? If ordered, obey Needn’t go to jail for client How far can legislation go to require attorney disclosure?

Can you disclose client wrongdoing? Jurisdictions are split. What type of wrong? What harm? Past or future? Attorney’s role?

A dangerous client Client reveals intent to hurt another When do you “know” Is it a “criminal act” Will it result in imminent bodily harm?

15. Does the privilege protect client wrongdoing? Crime-fraud exception is broader than exceptions to confidentiality

18. What if your services have been used for fraud? Can’t disclose in most jurisdictions May withdraw May “raise the red flag” (I.e. disclaim any documents)

19.What about client perjury? Don’t encourage Don’t allow Remonstrate with client if occurs Disclose if that will rectify the perjury

20.What question do you have?