Chapter Three Confidentiality

1. Chapter ThreeConfidentiality In this chapter, you will learn about: • Basic principles of confidentiality • The attorney-client privilege and the difference between the privilege and the ethics rules on confidentiality • Information that is privileged or protected by the rule of confidentiality • How and when the privilege and the duty of confidentiality may be broken or waived Page 1 of 2

2. Chapter ThreeConfidentiality (continued) • The work product rule • How the principles and rules of confidentiality come into play for paralegals in practice • How to protect confidentiality of information and records • Special problems in maintaining confidentiality with technology Page 2 of 2

3. Confidentiality • The principle of confidentiality is based on the notion that: • an attorney must know all the facts if he or she is to best serve the client, and • that a client will not provide full disclosure without assurance that information that may be incriminating or embarrassing will not be revealed outside the lawyer-client relationship.

4. Attorney-Client Privilege • The general rule regarding attorney-client privilege is that a client who seeks a lawyer’s advice or assistance may invoke an unqualified privilege not to testify and to prevent the lawyer from testifying as to communications made by the client in confidence.

5. If a Paralegal Receives Privileged Documents . . . • Refrain from reviewing such materials as soon as it is evident that they are privileged • Notify the sender about the materials • Either follow instructions of the sender, or seek a resolution of the disposition of the materials from a court

6. Confidentiality in the Corporate Setting • Special problems in applying the attorney-client privilege exist in the representation of corporations. • Questions sometimes arise as to who the ‘‘client’’ is and, flowing from that, what communications are protected. • Different jurisdictions use different tests to determine the application of the privilege.

7. Tests to Determine Application of the Attorney-Client Privilege • Control group test: Limits attorney-client privilege to confidential communications between the attorney and top management personnel • Subject matter test: Applies attorney-client privilege to all corporate employees who communicate in confidence with the attorney for the purpose of enabling the attorney to render legal services

8. Work Product Doctrine • Federal and state rules of evidence and discovery provide for the protection of materials prepared by lawyers in anticipation of litigation.

9. Technology and Confidentiality Consider how the following can cause breaches in confidentiality: • Electronic records • Facsimile machines • Cellular and cordless telephones • Computers • Electronic mail

10. Procedures to Protect Confidentiality when Using Computers • Refrain from using e-mail for very sensitive communications • Mark all confidential e-mails as privileged and include a statement telling the reader what to do if the communication is inadvertently sent to the wrong person Page 1 of 2

11. Procedures to Protect Confidentiality when Using Computers • Limit the recipients of a privileged e-mail to those who are absolutely essential to the privileged communication and warn recipients not to send such communications on to other persons. • Consider the use of encryption software • Consider closed networks using land-based lines with regular clients Page 2 of 2