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Welcome to Class INTRODUCTION TO LEGAL TECHNOLOGY
The Syllabus Due dates for assignments (Tuesday of that Unit) Self-check quizzes Midterm project and midterm exam Final project Office Hours Discussion Board Requirements
ATTORNEY-CLIENT PRIVILEGE Unit 1
How is Technology Used in a Law Office Word Processing Spreedsheets Time and Billing Accounting Calendars Trial Prep Email and Document Delivery
Technology and Confidentiality Legal assistants and nonlegal staff have access to confidential data and need to understand the nature of confidentiality so that client confidences are not disclosed Attorneys have a duty to keep client confidences, and those doing work for the attorney are similarly bound
Key Concepts for Confidentiality Duty of Confidentiality (and its exceptions) The Attorney-Client Privilege The Work Product Rule Inadvertent Disclosure
The Model Rules ABA Model Rule 1.6 Covers all client information, regardless of the source Generally covers client statements made in the presence of third parties Allows disclosure to prevent client crimes only if the crime is likely to result in imminent death or substantial bodily harm
How Do the Ethics Rules Apply Confidentiality to Legal Assistants? Professional Responsibility Rules apply the duty of confidentiality to the lawyer’s employees and associates (including paralegals and computer consultants) NALA guidelines requires legal assistants to preserve client confidences and secrets before, during, and after the course of the professional relationship
Exceptions to the Duty of Confidentiality When can client confidences be broken? implied authorizations needed to carry out the representation Preventing criminal behavior by the client defending claims made against the lawyer criminal charges made against the lawyer malpractice claims made against the lawyer disciplinary charges made against the lawyer collecting fees
Technology and Client Confidentiality Email Fax Machines Mobile or Cellular Phones According to the ABA and many jurisdictions, communicating in these ways does not violate the duty of confidentiality because there is a reasonable expectation of privacy with this technology, and because federal law prohibits wiretapping.
The Attorney-Client Privilege Is related to the ethics duty of confidentiality Is found in witness competency statutes Is an evidentiary rule Protects against compelled disclosure of confidential communications
The Paralegal’s Work Product and the Attorney-Client Privilege Statements made to the paralegal in an attempt to seek legal assistance are covered by the attorney- client privilege, even where the jurisdiction’s attorney-client privilege statute doesn’t mention paralegals But, for the paralegal’s work product--created during the course of litigation--to be covered by the attorney-client privilege, the work must have required professional skill (i.e. attorney skill)
Summarizing the Confidentiality Family Tree 1.The Duty of Confidentiality (ethics rules: MR 1.6 or DR 4-101) prohibits the voluntary disclosure of client information 2.The Attorney-Client Privilege (witness competency statutes) prevents compelled disclosure of confidential communications 3.The Work Product Rule (civ. pro. rule 26(b)(3)) presides over the discoverability of lawyer and employee-created evidence, prepared in connection to litigation 4.The Inadvertent Disclosure Doctrine (evidence rule 501(b)) provides the opportunity after fouling up
Protecting Against Breaches of Confidentiality Use encrypted email Get client permission to communicate by email Change computer passwords frequently Be careful on the phone Be careful in common office space Protect files and other client documents Remember the WWII phrase, “loose lips sink ships”
Protecting Against Inadvertent Disclosure Mark protected or privileged materials in a permanent way When in doubt about whether certain discovery materials should be sent to the other side, confirm with your lawyer If you think you may have inadvertently sent protected materials, or have received privileged materials, tell someone quickly
Voice Recognition Software and Thin Clients What did you think of the section in the first Chapter about voice recognition software? Do you think this will enhance the role of the legal assistant or could lead to a lesser need for legal assistants? What did you think about the section on “think clients?”
Do You Presently Work in a Lawfirm? If so, what type of technology is used? Do the attorneys where you work take paper files to court or computers? Are PDA and Blackberry devices used? Do paralegals get them too?
Question # 1 Plaintiff's attorney told an IT consultant that his client told him that she ran a red light. Did the attorney violate the attorney/client privilege? A)Yes B)No
Answer: Question # 1 Yes! An attorney or legal assistant cannot reveal information that is learned in the course and scope of a client representation. This was not an agent or “other person” needing to know this as part of the representation.
Question # 2 At a criminal jury trial, client tells attorney that client insists on testifying falsely. Attorney attempts to persuade client to testify truthfully and explains the consequences of perjury. Still, the client is adamant. Will the attorney violate the duty of confidentiality by telling someone?
Answer: Question # 2 No. If the client is going to commit a future crime or perjury, the attorney cannot allow the client to take the stand and can reveal that without violating the duty of confidentiality.
Question # 3 Defendant says to his lawyer, "I committed the murder, and I'm glad. Will you represent me?" Defendant's statement is:
Question # 3 A)Not privileged because of the crime/fraud exception. B)Privileged, but only if the attorney undertakes the representation. C)Privileged. D)Privileged, but only if the client pleads guilty.
Answer: Question # 3 C – Priviged!
Question # 4 The attorney-client privilege does NOT apply if: A. The attorney charges their client a whole lot of money B. The attorney takes the stand as a character witness for their client C. The confidential information is exchanged immediately following the crime D. The attorney gives advice in furtherance of a crime
Answer: Question # 4 D. The attorney cannot give advice in furtherance of a crime!
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