Understanding Attorney-Client Privilege and Confidentiality in Law

1. Powerpoint Chapter 4 2014 Attorney-Client Privilege and Confidentiality

2. Confidentiality Intro • Where in the law do you find the attorney-client privilege? • Common Law/Draft FRE 501 • What are the general elements of a-c privilege? • Communication • Made in Confidence • Between Lawyer and Client • For purpose of obtaining or providing legal assistance • Where do you find the duty of confidentiality? • Rule 1.6 • What does it cover? • All “information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).”

3. Comparing Privilege and Confidentiality

4. Draw a pie chart of the relationship between a-c privilege and confidentiality • Rule 1.6 applies to all information relating to the representation • A/C privilege only covers evidentiary matters • A/C privilege only applies to communications

5. 4-1 • Lawyer represents a client who suffered injuries when he was run down by a car in a crosswalk. The lawyer investigates the matter and comes upon a surveillance tape indicating that his client, one minute before the accident, had exited from an XXX rated adult theater with a woman who was not his wife. At a dinner party, the lawyer tells everyone the "ironic" story of his client, who got run down after being so "naughty." What is the proper finding for the disciplinary committee? • The lawyer violated no duties because the information about the client's whereabouts was not protected by the attorney-client privilege. • The lawyer violated the duty of confidentiality because the information was privileged. • The lawyer violated the duty of confidentiality because the information was embarrassing to the client. • The lawyer violated not duties because the information was not secret --- it was known by the woman who was with his client at the time.

6. Privilege or confidentiality?Review each possible answer • A/C Privilege (Draft FRE 501) • Communication • Made in Confidence • Between Lawyer and Client • For purpose of obtaining or providing legal assistance

7. Confidentiality • Rule 1.6(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). • (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: • (1) to prevent reasonably certain death or substantial bodily harm; • (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services; • (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services; • (4) to secure legal advice about the lawyer's compliance with these Rules; • (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client;  • (6) to comply with other law or a court order; or • (7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.  • (c)  A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

8. 4-2 • Lawyer represents a client who suffered injuries when he was run down by a car in a crosswalk. The lawyer investigates the matter and comes upon a surveillance tape indicating that his client, one minute before the accident, had exited from an XXX rated adult theater with a woman who was not his wife. Before trial, the lawyer receives a discovery request from defense counsel, demanding production of any surveillance tapes that are or may be relevant to the action. The lawyer refuses to produce the surveillance tape he found. Must the lawyer produce the surveillance tape? • No, because it is privileged. • No, because to do so would violate Lawyer's duty of confidentiality. • Yes, because the information is not privileged and the lawyer must turn over non-privileged information if a lawful demand is made. • Yes, because even though the information is privileged, the Lawyer must comply with a discovery request.

9. A/C Privilege • Communication • Made in Confidence • Between Lawyer and Client • For purpose of obtaining or providing legal assistance

10. Basics ofAttorney-Client Privilege

11. Chapter 4-3 • Client retains lawyer for his assistance in a real estate transaction. Client asks the lawyer in confidence whether the lawyer thinks it is "a good and workable deal." How is this communication to be treated? • As privileged, because the client was speaking in confidence to the lawyer. • Not privileged because the client was not seeking legal advice, and therefore not within the duty of confidentiality secret under Model Rule 1.6. • Privileged if the dominant intent is to seek legal advice, and within the duty of confidentiality. • Privileged if there was any intent to seek legal advice, but not protected by the duty of confidentiality as its disclosure would not injure the client.

12. A/C Privilege • Communication • Made in Confidence • Between Lawyer and Client • For purpose of obtaining or providing legal assistance • Issue is whether client is seeking legal advice.

13. 4– 4 • An attorney represents a plaintiff in a personal injury action. The plaintiff is in a bodycast and claims extensive injuries after a car accident. About a month before the trial date, the attorney goes on a skiing vacation. As he is swooshing down the slopes he sees his client --- bodycast-free --- swooshing down ahead of him. The defendant now subpoenas the lawyer to provide any information he has about the plaintiff's medical condition. The attorney --- who has since withdrawn from the representation --- refuses to supply any information and invokes both the attorney-client privilege and his duty of confidentiality. Does the attorney have a valid claim for refusing to testify on what he knows about the former client's condition? • No, because the information is not a communication and therefore is not protected by the privilege. • No, because the attorney no longer represents the client. • Yes, because turning over the information could subject the lawyer to discipline for violating Model Rule 1.6. • Yes, because the privilege means that the lawyer cannot be forced to testify against his client.

14. A/C privilege • Communication • Made in Confidence • Between Lawyer and Client • For purpose of obtaining or providing legal assistance

15. Applying the A/C Privilege to a Corporate Client • The Upjohn Song

16. 4-5 • The board of directors of a corporation votes to do a public offering of stock. The corporation hires an outside law firm to prepare the necessary documentation. The law firm communicates with corporate personnel and obtains factual information that would put the corporation in a negative light. Upon review of this information, the lawyer recommends that the corporation terminate its plan to do a public offering. The board agrees. Is the negative information obtained by the law firm protected by the attorney-client privilege? • Yes • No

17. Are communications w/Corporate personnel privileged? These particular communications? • A/C Privilege • Communication • Made in Confidence • Between Lawyer and Client • For purpose of obtaining or providing legal assistance • Applied to Corporation? Upjohn • Control Group (senior management)? • Corporate Employees • Upstream (possess info) • Downstream (advice)

18. 4-6 • A corporation is being investigated by the Environmental Division of the Department of Justice on suspicion that it had illegally dumped toxic chemicals for a number of years. Before the DOJ investigation began, the corporation had hired a law firm to investigate how the company was disposing of the chemicals. Lawyers interviewed corporate agents and filed a report with the corporation. The Department of Justice requests this report from the corporation. The corporation agrees to turn over the report "in the spirit of cooperation" but only if the Department of Justice signs a confidentiality agreement under which the Department will not turn over the report to any private parties. After receiving the report, the Department of Justice concludes its investigation of the corporation. But private parties allegedly injured by the corporation's activities bring a lawsuit against the corporation. They serve a discovery demand for the report. The corporation refuses to turn over the report, citing the attorney- client privilege. Which of the following is correct? • The report is not privileged, because the law firm was acting as a factual investigator, and so the "legal advice" requirement of the privilege is not met. • The corporation waived any privilege by disclosing the report to the Department of Justice. • There was no waiver, because the corporation was forced to turn over the report to the Department of Justice, in order to avoid a criminal prosecution. • The private parties cannot take advantage of the waiver, because it was not a general waiver, and the Department agreed to keep the disclosure confidential.

19. A/C Privilege • Who has authority to waive the privilege for the Corporation? • Upjohn • In a grand jury investigation, can an individual employee claim the corporation’s privilege? • Can a Corporation waive selectively by disclosure to the government? • Text 358-60

20. 4-7 • One big corporations sued another for fraud after a deal went sour. Each sought discovery of thousands of emails that were relevant to the case. At the defendant's request, and over the plaintiff's objection, the court entered an order providing that any disclosure of information protected by the attorney-client privilege during discovery would not constitute a waiver of the privilege. After the order was entered, the defendant produced 650,000 emails; 1000 emails involved confidential attorney- client communications. Subsequently the defendant was sued for fraud by another corporation that was involved in the deal that went bad. The plaintiff in this second case sought to use as evidence the 1000 privileged emails that the defendant produced in the previous litigation - arguing that the defendant waived the privilege by producing them in that litigation. Has the defendant waived the privilege by producing the emails in the prior litigation? • No, because there has been no showing that any waiver was intentional. • No, because the court order protects against a waiver in any subsequent litigation. • Yes, because the order in the previous case cannot bind a person who was not a party in that case. • Yes, because the order was entered in the absence of agreement between the parties in the case.

21. A/C Privilege • FRE 502(d) provides that “[a] federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court – in which event the disclosure is also not a waiver in any other federal or state proceeding.”

22. Chapter 4-8 • Joe is a used car salesman. He has been sued by a buyer who claims she bought a car with a turned-back odometer. Joe retains Lawyer to defend the case. When Lawyer asks Joe to describe the background of the dispute, Joe makes two statements to the Lawyer in confidence: 1) "I've destroyed a number of documents that could be used to prove the buyer's case." 2) "I still think there might be some documents in the files that could be relevant to her case. Could you look through the files and let me know what you think she might ask for in discovery?" • Neither is privileged, because each can be used to prove that Joe engaged in crime or fraud. • Both are privileged, because they sought advice on a legal matter and were made in confidence. • The first statement is privileged and the second is not --- the second was made to further a crime or fraud, the first was not. • The second statement is privileged, so long as Joe abandoned his plan to destroy more records.

23. A/C Privilege • Crime/Fraud Exception • Applies to communication seeking lawyer’s advice with the intent of furthering an ongoing or future crime or fraud. Applies even where lawyer was not aware of that intent. • The trigger for the exception is “prima facie evidence that the client was seeking the attorney’s advice and services in furtherance of a preconceived plan of wrongdoing.” Casebook p. 350. It does not require that the client actually commit a fraudulent or criminal act.

24. The Attorney General Asserts Privilege • Starts at 2:30 • A/C Privilege? • Communication • Made in Confidence • Between Lawyer and Client • For purpose of obtaining or providing legal assistance • Exception? • Crime/Fraud Exception • Applies to communication seeking lawyer’s advice with the intent of furthering an ongoing or future crime or fraud. Applies even where lawyer was not aware of that intent. • The trigger for the exception is “prima facie evidence that the client was seeking the attorney’s advice and services in furtherance of a preconceived plan of wrongdoing.” Casebook p. 350. It does not require that the client actually commits a fraudulent or criminal act.

25. Confidentiality

26. Brief Review and Preview • Lawyer will keep everything confidential • How is this pledge a lie?

27. A/C Privilege (Draft FRE 501) • Communication • Made in Confidence • Between Lawyer and Client • For purpose of obtaining or providing legal assistance

28. Confidentiality • Rule 1.6(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). • (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: • (1) to prevent reasonably certain death or substantial bodily harm; • (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services; • (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services; • (4) to secure legal advice about the lawyer's compliance with these Rules; • (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client;  • (6) to comply with other law or a court order; or • (7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.  • (c)  A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

29. Other exceptions • Rule 3.3

30. How can lawyer make the statement true?

31. 4-9 • Smith meets with Lawyer to discuss a possible property claim against Rich. After Smith explains his claim, Lawyer determines that Smith cannot afford her services and refuses the case. Rich then meets with Lawyer and offers to meet all of Lawyer's financial terms. In representing Rich, Lawyer uses the information Smith provided, reasoning that because they never had an attorney-client relationship, Lawyer owed Smith no duty of confidentiality. Is she subject to discipline? • Yes, because Smith was a client. • Yes, because Smith was a prospective client. • No, because Smith was not a client. • No, because the information was not dispositive.

32. Rule and result? • Rule 1.18 (a)  A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client. • (b)  Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client. • (c)   A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).

33. Rule 1.9 (c) • (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: • (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or • (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

34. Rule 1.18 (d): what happens if information is significantly harmful? • (d)   When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if: • (1)   both the affected client and the prospective client have given informed consent, confirmed in writing, or: • (2)   the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and • (i)    the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and • (ii)   written notice is promptly given to the prospective client.

35. Chapter 4-10 • An attorney represents a client who is under indictment for homicide. In the course of the representation, the client told the attorney that she had previously killed two other people. These murders are completely unrelated to the murder indictment for which the attorney is providing representation. With the client's consent, the attorney made a tape recording of the client's confession regarding the unrelated homicides. At the attorney's request, the client also drew a map of the remote locations of the victims' graves from the unrelated killings. Those bodies have not been found by the police, and the client is not a suspect in either crime, both of which remain unsolved. Is the attorney subject to discipline if he fails to voluntarily disclose to the authorities his knowledge of the two prior murders and the locations of the victims' bodies? • Yes, because as an officer of the court, the attorney must disclose any knowledge that he has, whether privileged or not, concerning the commission of the prior crimes by his client. • Yes, because the attorney is impeding the state's access to significant evidence. • No, because the attorney did not represent or advise his client with respect to the prior crimes. • No, because the information was obtained by the attorney in the course of the representation.

36. This problem is based on what case?

37. Rule 1.6 (a) and (b) • (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). • (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: • (1) to prevent reasonably certain death or substantial bodily harm; • (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services; • (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services; • (4) to secure legal advice about the lawyer's compliance with these Rules; • (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client;  • (6) to comply with other law or a court order; or • (7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client. 

38. Chapter 4-11 • A lawyer represents a client charged with murder. When interviewing the client about what happened, the client says "I hope they don't find out about that other murder I did in Virginia. If they do, they'll put me on death row." At the lawyer's request, the client then gives the details about the other murder. The lawyer does some surfing on the internet and finds out that another person has been convicted of that murder in Virginia, and is awaiting execution for the crime. The lawyer discloses the information to the authorities. Eventually the person convicted of that murder is released and the lawyer's client is convicted and sentenced to death. Is the lawyer subject to discipline? • No, because he had to disclose to prevent a death. • No, because he was permitted to disclose to prevent a death. • Yes, because he caused death. • Yes, because death was not reasonably certain.

39. Rule 1.6 (b) (1) • (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: • (1) to prevent reasonably certain death or substantial bodily harm;

40. The Lincoln Lawyer • Does the client correctly apply the duty of confidentiality?

41. Chapter 4-12 • A lawyer is representing a client who has been charged with murder. The murder weapon, a gun, has never been found. In a conference with the lawyer, the client says: "I'm worried about them finding that gun. I can't see any way out other than to get rid of it. I'm going to throw it in the swamp tonight, they'll never find it there." After the client leaves, the lawyer calls the police and tells them about the client's plan. The police then follow the client and arrest him just before he is going to throw the gun away. Is the lawyer subject to discipline? • No, because the lawyer should not have to sit silently while the client commits a future crime. • No, because the information was not privileged because the client was not seeking legal advice. • No, because disposing of a weapon could lead to death or serious bodily harm. • Yes, because there is no exception to the duty of confidentiality under these circumstances.

42. Rule 1.6(a) and (b) • (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). • (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: • (1) to prevent reasonably certain death or substantial bodily harm; • (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services; • (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services; • (4) to secure legal advice about the lawyer's compliance with these Rules; • (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client;  • (6) to comply with other law or a court order; or • (7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client. 

43. Chapter 4-13 • Attorney has been hired by Client to represent Client in a civil commitment proceeding initiated by the state. Client is now undergoing psychiatric evaluation to determine whether civil commitment should be ordered. Client told Attorney that Client intends to commit suicide as soon as the tests are completed, and Attorney believes that Client will carry out this threat. Suicide and attempted suicide are crimes in the state. Is it proper for Attorney to disclose Client's intentions to the authorities? • Yes, because the information concerns a future crime and is not protected by the attorney-client evidentiary privilege. • Yes, because disclosure of the information might prevent the Client's death. • No, unless Attorney knows that client has attempted suicide in the past. • No, because disclosure would aid the state in its civil commitment case against Client.

44. Rule 1.6 (b) (1) • (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: • (1) to prevent reasonably certain death or substantial bodily harm;

45. Spaulding • Spaulding is injured in an automobile accident. He sues the driver. Insurance company provides Lawyer for driver, who learns from medical experts that Spaulding suffers from aneurysm that probably resulted from injury occurring during accident. The aneurysm is life threatening. Lawyer also knows that Spaulding and his medical experts have not identified the aneurysm. Case settles. Lawyer does not reveal before or after settlement. Discipline? • Yes • No

46. Rule and Result? • Rule 1.6 (b)A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: • (1) to prevent reasonably certain death or substantial bodily harm;

47. Alton Logan • Alton Logan was wrongly convicted of killing a security guard. Another suspect has confessed to Public Defenders that he committed the killing. PD’s would have shared this information if Logan received a death sentence but he was sentenced to life in prison so they kept it confidential. After Wilson’s death, the lawyers came forward with this information and Logan was released after more than 20 years in jail. Based on facts in reading, discipline for PD’s? Discipline for failing to disclose?

48. Rules and result? • Rule 1.6 (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: • (1) to prevent reasonably certain death or substantial bodily harm; • Comment [20]   The duty of confidentiality continues after the client-lawyer relationship has terminated. See Rule 1.9(c)(2). See Rule 1.9(c)(1) for the prohibition against using such information to the disadvantage of the former client.

49. Rule 1.9 (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: • (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or • (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

50. Chapter 4-14 • Attorney represented Client in negotiating a large real estate transaction. Buyer, who purchased the real estate from Client, has filed suit against both Client and Attorney, alleging fraud and violation of the state unfair trade practices statute. Attorney had advised Client by letter against making the statements relied on by Buyer as the basis for Buyer's claim. Attorney and Client are each represented by separate counsel. In responding to a deposition under subpoena, Attorney wishes to reveal, to the extent Attorney reasonably believes necessary to defend herself, confidential information imparted to Attorney by Client that will be favorable to Attorney but damaging to Client. Is it proper for Attorney to reveal such information? • Yes, unless Client objects to the disclosure. • Yes, because Attorney may reveal such information to defend herself against a civil claim. • No, unless criminal charges have also been brought against Attorney. • No, because the disclosure will be detrimental to Client.