John Steele, Attorney at Law

2 Confidentiality

3 Topics 1. Definitions 2. Comparison 3. ABA Approach 1. Rule; Exceptions; Other rules 4. California Approach 1. Statute; CRPC; Case law; Draft Rules 5. Quiz

4 1 Definitions

Confidentiality 5

6 Three definitions  Confidentiality: a broad fiduciary duty to not use or disclose information relating to the ACR unless approved by the client or the rules  Privilege: a right to refuse to answer a question while under oath, if certain technical elements are met.  Work Product Protection: a judge-created right of lawyers to shield some of their thoughts about imminent or existing litigation

7 Confidentiality Defined  ABA: All information relating to the ACR  California: All information relating to the ACR that could be embarrassing or detrimental  Conceptual difficulty: can we speak at all?  Implied and express consent to disclose  “Exceptions” that defeat client objections to disclosure

8 Privileged Defined  A communication between an actual or potential client (or the client’s agent) and the actual or prospective attorney (or the attorney’s agent) for the purposes of rendering legal advice and not for the furtherance of a crime or fraud.  Evidentiary concept  Burden of proof on proponent of privilege  Lawyers must defend the privilege unless they’re excused from doing so.

9 Work Product Defined  A lawyer may refuse to disclose documents and tangible things reflecting the lawyer’s thoughts and impressions made in the anticipation of litigation.  A necessary aspect of adversarial justice  Two levels of WPP:  Opinion/core WP (which is virtually never discoverable by opponents)  Non-opinion (discoverable upon showings of substantial need and undue hardship)

10 2 Comparison

11 Duties to Clients: Confidentiality: Comparison to A/C Privilege  Confidentiality is broader than privilege  Attaches to all not-generally-known information related to representation  Attaches to information that is not privileged  Attaches, e.g., to information learned from third parties

12 Confidentiality & Privilege

13 3 ABA Approach

14 ABA Approach  MR 1.6  Definition  Exceptions  Other rules are referenced

15 ABA Approach  MR 1.6(a)  Definition: “information related to the representation of a client”  Broad!  Express or implied consent

16 ABA Approach  MR 1.6(b)(1)  “May,” not “must”!  “To prevent reasonably certain death or substantial bodily injury ”

DSBH 17

18 ABA Approach  MR 1.6(b)(2-3)  Prevent or rectify client crime or fraud resulting in substantial injury to financial interests or property of another; and  In the further of the crime or fraud, the client has used the lawyer’s services!

19 ABA Approach  MR 1.6(b)(4)  To secure legal advice about the lawyer’s ethical obligations

20 ABA Approach  MR 1.6(b)(5)  To establish a claim or defense on behalf of lawyer in client-lawyer dispute; or lawyer’s defense in criminal or civil matter in which client was involved; or to respond to allegations against lawyer

21 ABA Approach  MR 1.6(b)(6)  To comply with other law or court order  Judge rules that you must disclose  Other Model Rules  1.13; 1.14; 3.3; 4.1; 8.1; 8.3  Must regardless of 1.6 (3.3)  May under 1.6 = Must (4.1; 8.1, 8.3)

22 4 California

23 Duties to Clients: Confidentiality: Legal Sources  California B&P Code §6068(e):  “ Maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client ”  Crime leading to death or substantial bodily harm  CRPC  Case law: disputes between clients and lawyers; lawyer defense in criminal matters?

24 Quiz!

25 Quiz  Define the duty of confidentiality  Distinguish the duty of confidentiality from the concept of attorney client privilege  Give an example of something that is confidential but not privileged  Identify the number of the ABA rule on confidentiality  List the exceptions in the ABA rule  Identify the two places where the California rules exists  Define California’s one express exception to the duty of confidentiality