TOPIC B: CONFIDENTIALITY 2016 P.R. Prof. Janicke

ALL INFO “RELATING” TO THE REPRESENTATION MUCH BROADER THAN “PRIVILEGED COMMUNICATIONS” EVEN COVERS PUBLICLY AVAILABLE INFO, IF LEARNED IN COURSE OF REPRESENTATION [MUST BE A PRACTICAL LIMITATION?] 2016TOPIC B2

THE RULE IS NOT LIMITED TO WHAT THE CLIENT TOLD THE LAWYER TODAY, LAWYERS ARE OFTEN INVESTIGATORS –THEY INTERVIEW –THEY MAKE INQUIRIES –THEY STUDY DOCUMENTS 2016TOPIC B3

BASIC RULE R. 1.6: INFO CANNOT BE DIVULGED WITHOUT INFORMED CONSENT AS DEFINED IN R. 1.0(e) [NOT EASY TO COMPLY] –BUT CAN BE IMPLIEDLY AUTHORIZED –HOW ELSE COULD A LAWYER FUNCTION? 2016TOPIC B4

RULE 1.6(b) EXCEPTIONS LAWYER MAY (i.e., HAS THE OPTION TO) REVEAL CONFID. INFO: –TO PREVENT FUTURE DEATH OR SERIOUS BODILY HARM –PREVENT FUTURE CLIENT CRIME OR FRAUD IF THE LAWYER’S SERVICES WERE INVOLVED IN THE WRONGDOING –RECTIFY CLIENT’S PAST WRONGS IF THE LAWYER’S SERVICES WERE INVOLVED IN THEM 2016TOPIC B5

WHERE WARNING IS NOT ALLOWED LAWYER LEARNS FROM CLIENT: CLIENT HAS PLAN TO HACK INTO BANK AND STEAL $$ WANTS LAWYER’S ADVICE ON WHERE TO PUT THE MONEY LAWYER DECLINES TO ADVISE, BUT CONTINUES THE REPRESENTATION LAWYER CANNOT WARN THE BANK R. 1.6(b)(2) – NO LAWYER SERVICES USED 2016TOPIC B6

MORE EXCEPTIONS DISCLOSURE NEEDED TO CHECK ETHICS RULES COMPLIANCE –TO CLEAR CONFLICTS –TO GET ETHICS OPINIONS DISCLOSURE NEEDED TO DEFEND LAWYER, CIVILLY OR CRIMINALLY DISCLOSURE NEEDED TO COMPLY WITH A COURT ORDER [OFTEN TROUBLESOME] 2016TOPIC B7

USING INFO, W/O REVEALING IT, IS LIMITED LWYR CANNOT USE CONFID. INFO TO THE CLIENT’S “DISADVANTAGE” BUT CAN USE IT – WITHOUT REVEALING IT – OTHERWISE R. 1.8(b) 2016TOPIC B8

EXAMPLE: LEGAL RESEARCH RESULTS CAN BE USED BUT CANNOT REVEAL FOR WHOM THE WORK WAS DONE, ETC. 2016TOPIC B9

QUESTION: CAN YOU REVEAL THAT YOU REPRESENT (OR DID IN THE PAST) A COMPANY IN COURT? STRICTLY SPEAKING, NO –IS NOT TO CLIENT “DISADVANTAGE” UNDER R. 1.8 –BUT SEEMS PROHIBITED UNDER R TOPIC B10

MORE RE. THE EXCEPTIONS NEED TO CHECK FOR CONFLICTS –OFTEN SPEAKING OUTSIDE THE FIRM –WITHIN THE FIRM, DISCLOSURES AND SUBSTANTIVE DISCUSSIONS AMONG LAWYERS ARE PRESUMED PERMITTED R. 1.6 C5, last sentence 2016TOPIC B11